April 22nd, 2019
Robin Shea at Constagy
"Fat shaming" costs employer big bucks
Buff employers, beware!
A jury recently awarded $500 grand to a restaurant server in Las Vegas for intentional infliction of emotional distress. The server claimed that a sign calling him "Fat Andy" was posted at his wait station and was left there for several months, even though he'd made repeated requests to management that it be taken down. (The sign was supposedly in a plexiglass case, so the plaintiff could not remove it himself.)
According to the lawsuit, the sign was not removed until the restaurant closed.
A federal district judge in Nevada had granted summary judgment to the employer, the Bellagio, on the plaintiff's claims, which were originally for national origin discrimination and intentional infliction. But the U.S. Court of Appeals for the Ninth Circuit determined that the intentional infliction claim should go to trial.
And the rest is history.
In my opinion, the lower court had it right. Fat-shaming is bad, but I don't think the particular behavior alleged in this lawsuit is nearly bad enough to amount to "intentional infliction of emotional distress." The legal claim requires behavior (1) that is "extreme and outrageous," (2) that is "intended to cause severe emotional distress," (or engaged in with "reckless disregard" for whether it would cause severe emotional distress) and (3) that does in fact cause severe emotional distress. The plaintiff has the burden of proof on all three elements.
The "extreme and outrageous" requirement is a stringent one. Rude or insensitive behavior doesn't cut it. Instead, the behavior must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society."
Even assuming the "Fat Andy" sign was rude and hurtful, I don't see how it meets this very difficult legal standard.
And I have a problem with the second element, too. Did the employer (or co-workers) "intend" to cause the plaintiff to suffer severe emotional distress? Did they think severe emotional distress was likely to result and just didn't care? Or, on the other hand, was it simply a case of workplace teasing that went too far, coupled with employer negligence? If the latter, then there's no "intent."
That said, employers should be careful if they see that co-workers' teasing about weight (or other sensitive topics) may be unwelcome to the target of the jokes. Employers should never ignore such behavior, much less join in the "fun."
Another thing to keep in mind is that -- depending on how overweight the employee is, and the cause of the weight problem -- this could be considered unlawful harassment based on a disability, in violation of the Americans with Disabilities Act or state disability-rights laws. A number of federal courts have said that obesity is not usually a "disability" within the meaning of the ADA. However, if the obesity is so severe that it substantially limits an employee's major life activities, or if it is caused by some other medical condition (or medications that the employee is taking to treat or relieve a medical condition), then the target of the teasing could be protected.
(Thanks very much to Lisa Yumi Mitchell in our San Francisco Office, who alerted me to this verdict!)
This blog was written by Robin Shea at Constangy, which authors our Model Policies and Forms for Georgia Employers and our New Jersey Human Resources Manual. You can find the original on their Employment & Labor Insider blog (which is one of our favorites and is excellent).