Labor / Employment, On The Job

Fat Shaming At Work: The Beginning Of The End?

Could fat shaming and weight discrimination could become a thing of the past?

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The time has come to revisit obesity. And fat shaming.

Why?

We established some time ago that obesity is generally not considered a disability under the Americans with Disabilities Act (“ADA”), and that fat shaming is not generally considered actionable harassment. So, why revisit the subject — what’s changed?

Nothing — yet. But maybe soon.

Is Obesity A Disability?

Jill Switzer asked here a while ago whether “obesity discrimination” violates the ADA, and observed that “the EEOC says yes, but many courts have not been quick to concur.”  I agreed with Jill almost two years ago: “Last time I checked, Michigan was the only state that prohibits weight discrimination in employment (as do a half-dozen or so municipalities).”

Yes, 49 states and virtually every locality in the U.S. permit workplace weight bias, i.e., do not consider weight a protected class, or prohibit discrimination based solely upon weight.

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Recall that under the ADA, to be considered a disability the physical impairment must be outside the normal range (i.e., not just simply “overweight”) and the result of a physiological disorder. So mere obesity is not considered a disability without more — for example, if a medical condition such as hypertension or diabetes is caused or exacerbated by obesity, the obesity may be a disabling condition.

Is Workplace Bullying Harassment? Is Fat Shaming?

As I wrote previously, 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.

And since workplace fat shaming is a species of harassment based upon the weight of the person harassed it is not actionable in and of itself, as would be race or gender harassment.

But…

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What if obesity was, in fact, to be considered a disability?  Would “weight bias” in the workplace — or “fat shaming” — then be considered a form of workplace harassment?

The answers are not obvious, but a new appeal could change things significantly.

Is the Legal Treatment of “Morbid” Obesity a Harbinger of Change?

Morbid obesity is a different story than, let’s call it, simple or mere obesity. (Morbid obesity has been defined as “a person’s weighing either double his normal weight or at least one-hundred pounds more than his normal weight.”)

How is it different?

Morbid obesity has been held by some courts to be a disability under the ADA.  One court posited that “the critical question for purposes of assessing whether [plaintiff] is ‘disabled’ for ADA purposes is whether her obesity substantially limits one or more of her major life activities.”

Another court ruled that plaintiff “had developed diabetes as a result of her morbid obesity, and therefore said that she ‘has established that her morbid obesity is an impairment contemplated by the statutory scheme and has established that merely being overweight is not a disability in itself.’”

So morbid obesity can, in certain circumstances, be a disability under the ADA.  So, what about simple obesity — why is that different under the ADA?

The Door Is Cracked Open…

It’s been a long time coming, but change may be near.  Maybe.

In 2013, the American Medical Association declared obesity a disease. At the time this seemed like an opening – a very important one – for classifying simple obesity as a disability. And since then, a lot of medical research has supported this conclusion.

As the Obesity Action Coalition notes on its website, “Obesity is a chronic disease that is often misunderstood by people affected by it, healthcare providers and others. There is no one-size-fits-all approach to addressing obesity.”

Good point.  But the law has not changed.

Now, however, comes an appeal to the Seventh Circuit Court of Appeals which challenges a lower court grant of summary against an obese employee because he could not show that obesity was an actual or perceived impairment without also showing a separate “underlying physiological disorder or condition.”

Because the moment may now be ripe, this case has attracted a lot of attention — and a well-reasoned amicus brief submitted by a number of medical societies and advocacy groups.

In Richardson v. Chicago Transit Authority, the amicus brief says that it intends:

to inform the Court that medical knowledge and understanding of obesity has grown exponentially throughout the past two decades. Once understood as a simple matter of personal responsibility or willpower, we now know that obesity is a complex, chronic physiological condition. Central to the resolution of this case is whether obesity, by itself and without any secondary, underlying physical conditions, can be an “impairment” as defined by the Americans with Disabilities Act.

The amicus brief, signed by, among others, the Obesity Action Coalition, contends that the prevailing view that obesity could not be a physiological condition in and of itself “is contrary to the prevailing science about the causes of obesity, its biological origins and mechanisms, its clinical manifestations and impact, and the consensus view of the medical community.”

Starting with the AMA’s 2013 pronouncement, and citing tons of medical and psychological research, the brief carefully discusses the elements of the ADA and declares that “Obesity falls squarely within the definition of impairment: it is a ‘disease’ or physiological disorder/condition that impacts numerous body systems.”

The brief makes a strong showing.   And what if they prevail?

What If Obesity Is Considered a Disability?

Well, one result is obvious — that people with obesity, being considered disabled, will be afforded the protections of the ADA. Which is certainly not insignificant.

But beyond that, perhaps workplace “fat shaming,” which (as noted above) is considered unactionable “bullying,” will then be considered actionable harassment.

Since morbid obesity has been held by some courts to be a disability under the ADA, and, therefore, fat shaming a morbidly obese employee could violate the ADA (i.e., creating a hostile work place for the shamed employee), then if simple obesity is held to be a disability under the ADA, maybe fat shaming an obese employee could similarly violate the ADA.

Now that would surely be a very significant result and a giant step.

Surveys have shown that there clearly is “weight bias” in the workplace — on a scale of overweight to severely obese, there is a 12 to 100 times greater likelihood of discrimination. And a Yale study found that “over­weight adults were 12 times more likely to report hav­ing ex­pe­ri­enced weight-based em­ploy­ment dis­crim­i­na­tion than thin­ner per­sons.”

So fat shaming and weight discrimination could become a thing of the past (but if harassment and discrimination of other protected categories is any indication, perhaps you should not hold your breath).

Takeaway

Change usually takes time, sometimes a very long time, but, on occasion it can happen in a flash. In this case, if the court reverses summary judgment (a very big “if”) people may say that it instantly changed the law.

But medical people and advocacy groups know that the change was a long time coming.

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.

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