Fat Shaming In The Workplace: Is Calling Someone A 'Big Bottomed Girl' Actionable?

As of now, fat shaming is, for the most part, a wrong without a remedy.

Multiple choice question: Being “fat” is (a) a medical condition, (b) genetic, (c) a lifestyle choice, or (d) your own lack of discipline.

Who isn’t concerned about their weight? Or, to put it simply, obsessed? Our culture (Hollywood? Madison Avenue? Social media?) encourages this obsession.

And being “fat,” apparently, is the ultimate shame.

Putting medicine and sociology aside, weight is indeed all-consuming, including – or especially – in the workplace. Does it hinder your ability to get hired? To work in “the front office? To be free from “fat shaming?”

Ah, fat shaming.

It’s time to revisit fat shaming since Jill Switzer wrote about it here more than a year ago. She asked a legal recruiter what issues she was seeing and was told that “It’s discrimination on the basis of size.… it is one of the last and apparently acceptable forms of discrimination.”

Jill discussed fat shaming as a species of discrimination, but for this post we will examine it as a species of harassment (which is, of course, itself a species of discrimination). That is, does fat shaming create a hostile work environment, and is it actionable?

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After writing many posts about workplace “beauty bias,” workplace bullying and harassment, and the ADA, it seems that fat shaming may be a confluence of all of these – and more.

Let’s Define Our Terms

One source defines fat shaming as “the practice of criticising people publicly for being too fat or, less frequently, too thin.” Sounds simple enough.

But for those who believe that everything is political and that even the issue of weight is a product of the current political climate, there is this definition in the Urban Dictionary:

A term made by obese people to avoid the responsibility to actually take proper care of their body and instead victimize themself [sic] by pretending they’re discriminated like an ethnic group.

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Ok, I’m not going down that path. (BTW, Jill Switzer was scathing in calling out male law hiring partners who said that obesity “indicates a ‘lack of discipline.’”)

For our purposes, let’s use as a workable definition that workplace fat shaming is a species of harassment based upon the weight of the person harassed. But is it actionable, as is race or gender harassment?

Short answer? No. Long answer (as always)? It depends.

Depends On What?

Remember the short answer is “no.” So let’s consider other factors for our long answer – like bullying and/or harassment. Workplace bullying is “abusive conduct that is: threatening, humiliating, or intimidating, or work-interference, i.e., sabotage, which prevents work from getting done.” And we’ve already established in a previous post that workplace bullying, or harassment, without more, is not actionable.

“Currently there are no federal or state laws defining or regulating workplace bullying. Justice Scalia put it bluntly in Oncale: Title VII is not ‘a general civility code for the American workplace’ (so get over it!).”

But bullying may be actionable if it is based on race, color, religion, sex, or national origin – under Title VII. And fat shaming seems to fall within the definition of bullying. We can therefore deduce that fat shaming, like bullying, is actionable if it is based on gender, race, color, etc. So, for example, calling an employee a “fat girl” could implicate Title VII’s proscription against gender harassment.

One EEOC case illustrates the contours of this. It involved an employee who complained that her supervisor called her “Fat Ass,” “Big Butt,” “Big Bottomed Girl,” and other similarly pleasant things. She claimed that “other men around the office were not called similar names and that the phrase ‘Big Bottomed Girl’ could only refer to females, therefore meeting the requirement that the conduct complained of was based on sex.”

Sounds right to me.

The EEOC agreed and stated that “a prima facie case of sex-based harassment requires that the harassment complained of was based on complainant’s sex” and that “by calling complainant ‘Big Bottomed Girl,’ the supervisor made distinctions based on her sex. There is no indication that he referred to males in a similar manner.”

So she won?

Umm, no.

The EEOC held that “complainant often laughed and poked fun at her own weight in front of co-workers, therefore indicating that she did not consider the supervisor’s comments to be abusive,” and that “[o]ther than the isolated instances mentioned in the record, complainant fails to establish that her supervisor’s conduct was severe or pervasive,” so as to make out a hostile environment claim.

So she lost – but established a principle. This is an old case by employment law standards – from 2004. My guess is that the result might have been different today, but in any event the point is that this fat shaming was held to be actionable because it was gender-based.

How About Weight Harassment?

As I noted earlier, “Last time I checked, Michigan was the only state that prohibits weight discrimination in employment (as do a half-dozen or so municipalities). … And guess what? Women suffer this more than men. What a surprise!”

So if there generally is no such thing as weight discrimination – fat shaming is ruled out as actionable harassment.

Jill mused whether “obesity discrimination” violates the Americans with Disabilities Act (“ADA”), and observed that “the EEOC says yes, but many courts have not been quick to concur.” But it’s actually morbid obesity that has been held by some courts to be a disability under the ADA. So fat shaming a morbidly obese employee could violate the ADA – i.e., creating a hostile work place for the shamed employee.

That’s as far as that line of thought has developed.

Well, How About “Beauty Bias” Discrimination?

What about discrimination based upon looks, referred to as beauty or appearance bias? Is that discriminatory? And if so, does being “fat” fit within this category?

Sorry, no.

There is nothing in Title VII that prohibits “beauty bias” or “lookism” per se, as long as there is no “disparate impact” on, for example, religious beliefs or disability, which require a certain appearance, grooming, dress or hairstyle. Think religion-required beards or tattoos, or missing limbs or baldness as a result of cancer treatment.

But I guess you could postulate a fact pattern whereby someone is fat shamed based upon a lookism policy, and religious beliefs are implicated. I just haven’t come across one.

Takeaway

As of now, fat shaming is, for the most part, a wrong without a remedy. Maybe in the future…

Earlier: Is There Workplace Weight Bias, And Is It Against The Law?


richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.