Oct 16, 2013

By Carmon M. Harvey

When dearly departed Chris Farley made fun of his weight, it was hilarious and worth millions at the box office.

But for employers with employees who similarly make light of their more substantial colleagues – or worse yet, outright bully them – it also could be worth millions of dollars. That won’t be nearly as funny.

Recently, a professor at the University of New Mexico was censured in connection with tweets about obese Ph.D candidates whom he felt would not have the wherewithal to complete a dissertation if they did not have the willpower to control their eating habits. This negative and stereotypical attitude towards the heavier set is becoming more prevalent and more vocalized as our population continues to grow (around the waistline, that is).

A problem for wellness programs?

While there is no federal law prohibiting discrimination on the basis of weight, some states and localities have implemented such laws. Even in the absence of a federal law, however, the Americans with Disabilities Act and the ADA Amendments Act have increasingly been the basis for successful claims brought by individuals who allege that their obesity is an impairment within the meaning of the ADA, regardless of whether it is “self-inflicted” or due to an underlying physiological disorder.

Such claims previously were limited to the “severely” or “morbidly” obese, but courts recently have permitted obesity-based claims on more of a sliding scale. These claims will only increase following the American Medical Association’s vote in June to classify obesity as a disease.

Employers also may unknowingly be creating opportunities for employees to make fun of their huskier colleagues through company-wide wellness programs.

While, if done correctly, these programs are an effective and lawful way to help curb rising insurance costs and develop a healthier workforce generally, office weight loss competitions can provide ample fodder for tasteless jokes and teasing. And (hypothetically speaking) sometimes simple positive encouragement by a fit employee could be perceived as harassment by an overweight colleague who doesn’t want to be patronized by some “neurotic marathon runner.”

What employers should do

So, what should employers do if their employees get their kicks by bullying their broad co-workers?

For starters, they should not do nothing. Employers should have a zero tolerance policy for workplace bullying, whatever the reason and whomever the target. Office bullying is a distraction that negatively affects performance, productivity, and, as a result, profit. Employers also should enforce civility in the workplace to avoid the weighty burden of a lawsuit down the line.

Second, while employers should encourage employees to participate in wellness programs, they should not pester individual employees to participate, even if it’s largely apparent how much the employee would benefit. Such conduct could cause a legitimate wellness program to backfire and contribute to a hostile environment towards overweight employees (some or all of whom may also have a qualifying disability under the ADAAA).

In short, unless they happen to be in the comedy business, employers should strongly encourage (through discipline, if necessary) their employees to leave the fat jokes to the people who get paid to make them.

This was originally published on Montgomery McCracken’s Employment Law Matters blog.

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