Health as a Bottleneck
In his thoughtful and path-breaking book, Bottlenecks: A New Theory of Equal Opportunity, Joey Fishkin challenges the common conception of equal opportunity as providing a level playing field. He explains that merely equalizing opportunity at critical points in a person’s life, such when she applies for a desirable job or college program, is often not enough. By then, social inequities and previous limited opportunities may have already taken their toll on the affected individuals, perhaps leaving them underprepared and ill-equipped to meaningfully compete—let alone succeed—even when given the chance. Fishkin explains that this line of reasoning puts us in a vicious cycle: To achieve true equal opportunity, interventions must happen earlier. But when is earlier? The disadvantaged job applicant could have benefited from a better college education. Yet the disadvantaged college student could also have benefited from a better high school education. And the disadvantaged high school student could have benefited from a better primary school education. And the disadvantaged primary school student could have benefited from having parents with higher incomes and more time to devote to parenting, which just takes us back to the disadvantaged job applicant. Hence, Fishkin identifies a key flaw in the traditional construction of equal opportunity: We are all the products of our opportunities, and those opportunities can never be truly “equal.” To that end, he endorses “opportunity pluralism,” which he defines as making more opportunities available to more people. Thus, in a society that limits educational or job opportunities based on a particular standardized test, we can move away from asking whether the test is a fair metric and instead ask why the opportunity structure depends upon its results.
Fishkin christens these opportunity-limiting factors “bottlenecks” and pushes us to understand traditional antidiscrimination protections through that lens. Thus, well-known protected statuses, such as race and sex, can be understood as bottlenecks because certain opportunities have been construed to require whiteness or maleness. But legally recognized antidiscrimination categories, such as race and sex, are not the only bottlenecks we have to contend with. Employers also restrict opportunities based on other factors, such as college education, credit history, criminal convictions, or unemployment. My own scholarship has dealt extensively with yet another employer bottleneck: health.
The Affordable Care Act—specifically its much contested employer mandate—has given employers a keen interest in screening their employees for health to keep health-insurance costs low. Because using tobacco and being overweight frequently correlate with poor health, employers around the country have banned hiring nicotine users, and one Texas employer briefly adopted a policy against employing severely obese people. I have read nicotine and obesity bans in concert, dubbing this new form of employment discrimination “healthism.” While my work has cast these policies as discriminatory in the traditional sense, Fishkin’s theory reveals that we can also understand nicotine and obesity bans as health-related bottlenecks.
Applying the anti-bottleneck principle to these policies is illuminating. We can begin with Fishkin’s observation that traditional notions of equal opportunity fail to adequately acknowledge how previous opportunities have already shaped individuals’ skills and preferences. Health, like many of the examples in Fishkin’s book, is inevitably tied to previous opportunities. Not all people are equally situated to be healthy. Smoking is more common and therefore more acceptable in certain communities. Maintaining a healthy weight often entails making healthier food choices (which are en masse more expensive and more difficult to access than their unhealthy processed counterparts) and getting regular exercise (which requires time and energy). Health as a bottleneck also coincides with other potential bottlenecks, mainly race, disability, and poverty. Statistically, people of color, people with disabilities, and poor people are more likely both to smoke and to be overweight. Furthermore, many individuals who smoke or are overweight would prefer that was not the case. However, their ability to adopt healthy behaviors is often hampered by external factors, such as having the time, money, and access to resources to devote to making significant lifestyle changes. Thus, the common response that smokers should quit or obese people should lose weight fails to acknowledge how existing opportunity structures have contributed to these issues in the first place, as well as how bottlenecks can be simultaneously concurrent and mutually reinforcing.
Moreover, using health as a bottleneck creates additional bottlenecks. Healthist employment policies deny the affected individuals any number of important social goods that could in fact lead them to be healthier, thus limiting access to even more opportunities. When employers screen out applicants who are deemed unhealthy, they cut off the affected individuals’ access to wages (a resource that could be spent on improving health), employer-provided benefits (the primary source of health insurance for non-elderly Americans), and employer wellness programs (initiatives that frequently include tobacco cessation and weight-management elements), thereby further limiting the affected individuals’ opportunities to be healthy.
Yet as a society, how should we deal with health as a bottleneck? Is this a case like race in which the bottleneck is unrelated to actual job performance, and thus arbitrary, favoring its elimination? Perhaps not. Employers have many reasons beyond mere cost containment to regulate the health of their employees. In particular, proponents of healthist employment policies champion these screens as socially beneficial, as they will inspire people to quit smoking or to lose weight. Thus, we cannot quickly dismiss them as completely arbitrary or devoid of social value. At a minimum, healthist policies may be economically rational and at their apex they could serve as instruments to promote health. While I have argued against such hiring bans generally, Fishkin’s theory suggests a more nuanced approach.
For cases in which bottlenecks are either legitimate or intractable, Fishkin advocates a two-pronged approach: we can (1) help people through the bottleneck and (2) create paths around the bottleneck to allow them to obtain the desired social good without passing through. Applying this framework to healthism, we can both (1) seek to help people through the health bottleneck by providing them with the time and resources necessary to quit smoking or to lose weight and (2) loosen the health bottleneck to ensure that employers cannot screen for health absent sufficient justification, such as safety concerns or job-relatedness. As a general matter, Fishkin is suspicious of relying too heavily on the first approach to the detriment of the second because so doing could substantially limit autonomy. Taking steps to help people through the bottleneck without simultaneously loosening the bottleneck pushes them to conform to the constraints of the existing opportunity structure. In the health context, if the federal government provides free tobacco cessation and weight-loss programs but all employers adopt nicotine and obesity bans, individuals would be forced to quit smoking or to lose weight, as they could not otherwise attain employment. Hence, relying primarily on facilitating passage through the bottleneck without loosening the bottleneck could be unduly coercive. In addition to being very personal matters, health-related behaviors are notoriously difficult to change. Anyone who has chewed nicotine gum or gone on a diet can attest to the perils of quitting smoking or losing weight. They are simply not easy things for most people to do. While it may be socially desirable to encourage people to adopt healthier behaviors, relying primarily on helping people through the bottleneck not only infringes on personal autonomy but may also be practically unworkable. Thus, it seems that the best strategy would be to facilitate healthier decision-making through public policy while simultaneously loosening the existing bottlenecks.
The closest analog to healthism that Fishkin discusses in Bottlenecks is appearance discrimination. Fishkin recognizes that appearance discrimination is both pervasive and has a negative effect on opportunity generally. As with healthism, in the context of appearance discrimination, we can both help people through the bottleneck and help them bypass the bottleneck. That said, helping people through the beauty bottleneck necessitates conformity with a particular vision of beauty just as helping people through the health bottleneck necessitates a particular vision of health. Both examples restrict individual autonomy. While society could provide resources to promote beauty and health respectively, loosening the bottleneck by reducing its severity is, at least in my estimation, a preferable strategy. Yet how can we do that?
Antidiscrimination legislation is a common mechanism for reducing the severity of bottlenecks. Fishkin does not pretend that antidiscrimination law can eliminate appearance discrimination. It can, however, mitigate it. The same goes for healthism. While I have focused my work on outright healthism, the anti-bottleneck principle would likewise encompass circumstances in which health functions as a covert or unintended bottleneck. Like appearance discrimination, employers need not explicitly adopt healthist policies to engage in healthism. Employers could choose not to hire smokers or overweight people because they believe those individuals will alienate customers or will not fit in with the workplace culture. Further, these beliefs can operate on an unconscious level. Employers may avoid hiring smokers or overweight people, not due to explicit animus, but rather unconscious biases about the tendencies or abilities of those individuals. Thus, health-related statuses could—and probably already do—function as bottlenecks even without an associated healthist employment policy. However, when health operates as a bottleneck covertly or unintentionally, it is far more difficult to identify and hence regulate. While Fishkin’s theory reveals that covert or unintended bottlenecks are no less constraining on opportunity and, therefore, no less harmful or socially problematic, he also explains that a law or policy does not have to eliminate a bottleneck to reduce its effects. Hence, antidiscrimination laws prohibiting healthism may have difficulty addressing those subtler forms of discrimination but they will nonetheless loosen the bottleneck and, by consequence, reduce its severity.
For more on healthism, see Jessica L. Roberts, Healthism and the Law of Employment Discrimination, 99 Iowa L. Rev. 571 (2014).