Source of article Jury Insights.
Bias against the Overweight Client or Key Witness
Anti-fat bias refers to prejudicial attributions of personality characteristics (such as “lazy”, “stupid”, “slow”, or “unmotivated”) based on perceived obesity and may carry with it an unconscious reaction of disgust.
In the courtroom, litigators face the reality that jurors may be significantly prejudiced against clients, fact and expert witnesses who are significantly overweight.
Anti-fat Bias in Litigation
During my 19 years as a trial consultant I have consistently observed juror prejudice against the obese.
For personal injury cases, in both mock juror research and at trial, jurors will often attribute contributory negligence, causation of injury and/or failure to mitigate damages to an obese individual when such attributions would be unlikely for an average-weight person.
The following example of a case subjected to mock juror research probably reflects multiple elements of prejudice– but includes significant anti-fat bias. It is representative of several other matters I have worked on in which mock juror research evoked anti-fat bias.
A middle aged obese woman plaintiff was T-boned in an uncontrolled intersection by a younger physically fit man in the military. “Jaws of life” equipment was required for EMT responders to remove the woman from her vehicle. The woman went through a protracted period of rehabilitation, in part due to her obesity. Although the young man had been cited, this fact was not provided to the jurors because of its inadmissibility.
The jurors reasoned that because the woman was obese she probably could not turn her neck to see the oncoming car and take appropriate evasive action; therefore, they attributed a significant percentage of contributory negligence to her. They discussed that the “jaws of life” equipment was probably necessary because of her obesity. They further reasoned that the woman failed to mitigate her damages because her obesity interfered with her healing process; therefore, they significantly reduced her compensation for both economic and non-economic damages.
Explicit and Implicit Bias
Anti-fat attitudes can be expressed both explicitly, through conscious self-report, and implicitly, outside of awareness or conscious control.
Research has found strong implicit anti-fat bias even among health professionals who specialize in obesity treatment and who did not report explicit negative attitudes toward overweight persons.
Implicit anti-fat bias is both difficult to identify and resistant to change.
Studies have found that informing participants that obesity was mainly due to biological factors did not reduce implicit bias, although telling participants stories about discrimination against obese persons to evoke empathy was somewhat successful in reducing implicit bias among those identifying as obese.
Implications for Voir Dire and Jury Selection
How can potential anti-fat bias be approached during voir dire?
One of the problems for voir dire is that anti-fat bias may be withheld or denied explicitly, while implicit bias may reside unknown in the unconscious of the juror. The attorney needs a way to get an initial read on explicit bias and then work on reducing implicit bias.
Drawing Out Explicit Bias
Statistically, the litigator can expect that at least a third of potential jurors have personally suffered with significant weight problems or obesity. Of average-weight jurors, a significant percentage will have close family members who suffer with obesity.
The attorney can start by asking the jurors to speculate on the percentage of people in the country that suffer from obesity, followed by a discussion of why people become obese.
From this “intellectualized” discussion, the attorney should make note of jurors who emphasize variations of attributing failures of “self-control” as the explanation for obesity. It is not necessary to explore “why” they believe this, and totally useless to argue with them.
Reducing Implicit Bias
Using the jurors who emphasize “biological” issues as the cause of obesity, the attorney should explore the stigmas and difficulties that obese people face in their lives.
Along the way, jurors may discuss personal stories or family member stories associated with obesity. The attorney should avoid asking invasive personal questions, and instead, create an environment in which jurors want to discuss personal stories.
We can infer from the research that people who have a personal connection with the obesity problem may reduce their own implicit bias through empathizing with the difficulties faced by obese persons. Beyond the subgroup of overweight jurors, it is important that the average-weight juror connect emotionally (not just intellectually) with a real victim of anti-fat bias.
The attorney must respond with compassion and understanding to the juror sharing a personal story, and thank the juror for contributing to the discussion.
Jurors who are unsympathetic to the suffering of the obese may reveal themselves more explicitly during this discussion.
The attorney should also make note the average-weight (or near average-weight) perennial dieter, the obsessive exerciser, the ‘unnaturally’ thin, or highly fashion conscious individual. You are looking for any signs of intolerance or disgust towards the obese.
Crandall, C. S., & Biernat, M. (1990). “The ideology of anti-fat attitudes”. Journal of Applied Social Psychology, 20, 227-243.
Crandall, C. S. (1994). “Prejudice against fat people: Ideology and self-interest”. Journal of Personality and Social Psychology, 66, 882-894.
Teachman, B., & Brownell, K. (2001). “Implicit associations toward obese people among treatment specialists: Is anyone immune?” International Journal of Obesity, 25, 1-7.
Teachman, B.; Gapinski, K.; Brownell, K.; et al. (2003) “Demonstrations of implicit anti-fat bias: The impact of providing causal information and evoking empathy”. Health Psychology, Vol 22(1), Jan 2003, 68-78.