Melanie Lynskey, a star of the new Showtime series “Yellowjackets,” recently recounted an incident in which a co-worker allegedly criticized her body on set. According to Lynskey, a production team member asked her what she planned to do about her weight and suggested that the show’s producers would be willing to hire a personal trainer to help get her in shape. Lynskey, 41, said she was also body shamed by viewers who questioned whether the character Adam, a handsome young artist who has an affair with Lynskey’s character Shauna, would have been attracted to someone who looks like her.
Unfortunately, negative comments and unwanted attention like Lynskey received on set are all too common in American society, and such attitudes frequently spill over into the workplace. One study from Yale University found that employees who are overweight are 12 times more likely to experience discrimination based on their weight than their thinner co-workers. Another study from Vanderbilt University found that overweight women make less money than women who are average weight, and make less than all men, even men who are overweight.
Obviously, sharing your opinion about a co-worker’s body is impolite, but is it illegal? Courts often emphasize that employment laws governing workplace discrimination are not “general civility” codes for the American workplace. To be unlawful, discrimination must be based on an employee’s sex, race, color, religion, or other protected characteristic. Applying these principles, calling someone “fat” or treating someone less favorably solely because of his or weight generally does not run afoul of Title VII. But, if employees of only one sex (or race, etc.) are targeted for such harsh treatment, the conduct could be considered discriminatory.
For example, in one case brought before the EEOC, the agency concluded that a supervisor calling a female employee a “big bottomed girl” could support the “based on sex” element needed to establish a prima facie case of sexual harassment. Ultimately, however, the EEOC found that the employee did not establish sexual harassment, despite the supervisor’s rude comments about her appearance, because the comments were isolated incidents, not severe or pervasive, and the employee often made fun of her own weight, showing that she did not consider the comments to be objectively offensive and unwelcome.
Although comments about an employee’s weight don’t necessarily violate Title VII, employers should keep in mind that morbid obesity has been found to constitute a disability under the Americans with Disabilities Act. Likewise, there are other disabilities closely associated with obesity (such as diabetes) which are clearly protected by the ADA. In addition, even if an employee’s obesity does not rise to the level of a disability, an overweight employee who is perceived to be disabled because of his or her weight may be able to bring a claim for disability discrimination, if the employee suffers an adverse employment action as a result of the employer’s perception.
For now, only the state of Michigan and a few municipalities prohibit weight discrimination in employment. Nonetheless, some laws may afford relief to overweight employees who suffer unfair treatment based on their weight. As a result, employers should treat all employees with respect, regardless of their weight, and evaluate employees based on their job performance, not a number on the scale. It’s not only the wise thing to do from a legal perspective, it’s the right thing to do as well.