From the fit California mother who posted on Facebook a picture of herself with her three children and asked “What’s Your Excuse?” to comedian Jay Mohr’s joke about actress Alyssa Milano’s post-baby weight, it increasingly is becoming dangerous to criticize people’s weight. While there is still much debate over at what point healthy criticism becomes “fat shaming,” I think the more important question, particularly for federal employees, is: At what point does fat shaming become unlawful harassment or retaliation?
To answer this question, federal employees first need to understand that federal laws do not specifically protect them against discrimination based on their weight. But when employees are harassed because they are a “fat girl” or a “fat Hispanic,” for example, such comments venture into the territory of Title VII of the Civil Rights Act, which prohibits discrimination based on sex, race, color, national origin, and religion.
The Equal Employment Opportunity Commission has found that even some “upsetting” forms of fat shaming does not rise to the level of unlawful harassment under Title VII. For example, Heithcock v. U.S. Postal Service (2004) involved a part-time flexible clerk whose supervisor had said to her such things as “Big Butt” and “Big Bottomed Girl.” The EEOC found comments such as this last one “were made based on complainant’s sex.” Other co-workers called her similar names, too, and the supervisor never stopped addressing her in such a way even after she asked him to refrain from doing so. This behavior prompted her to file a sex harassment Equal Employment Opportunity (EEO) complaint.
The agency claimed that the clerk did not consider her supervisor’s comments to be abusive because she “laughed and poked fun at her own weight in front of co-workers.” In the least, the EEOC acknowledged that “despite her ability to treat her perceived shortcomings with levity, by complaining to her supervisor about his behavior, she claims that such conduct was offensive.” Still, the Commission found the complainant failed to show the severity or pervasiveness of the supervisor’s conduct. While the EEOC said a reasonable person could find the supervisor’s behavior “upsetting,” it was “not severe or pervasive enough to render the environment so intolerable as to alter the conditions of her employment.”
Even when management finds fat shaming to be inappropriate, it may not qualify as harassment. For example, the case, McGregor v. Department of Veterans Affairs (2006), involved an information receptionist at an agency medical center who had asked a manager if he needed a secretary. He responded by saying the receptionist was “not pretty enough, not smart enough, and not a size 5,” to which she responded, “Are you stating that I am dumb, ugly, and too fat[?]”
The manager said he was “just playing” and later apologized after an executive informed him such comments were inappropriate and would not be tolerated. The receptionist later filed an Equal Employment Opportunity (EEO) complaint alleging discrimination based on race, color and age, but the agency dismissed it. The EEOC likewise dismissed the complaint, saying, “this single event was not severe enough to state a claim of harassment.”
In Joiner v. Social Security Administration (2006), the EEOC awarded $30,000 in non-pecuniary compensatory damages to a tele-service center employee who had complained about two coworkers who had loudly discussed sexual issues next to her work station. After learning about the complaint, the coworkers engaged in what the EEOC deemed a “constant barrage of insults, some of which were sex-based.” They called her such things as an “elephant” and a “fat [derogatory word for a female dog].”
The Commission noted that the coworkers’ sex-based conversations interfered with the listener’s work, and “[t]here are even more disturbing effects when the hostile, sexist remarks are directed at one individual personally, causing her individually to feel embarrassment, anger, and sadness. This is what [Coworkers A and B] did when they attacked Complainant because she opposed their inappropriate, sex-based conversations at her work station.” Ultimately, the Commission concluded the coworkers’ conduct was “sufficiently severe so as to constitute a hostile work environment based on complainant’s sex and in reprisal for protected activity.”
Federal employees who believe they have been subjected to sex or race-based fat shaming should immediately contact a federal employment law attorney.