Workplace wellness programs have risen in popularity in the United States over the past several decades, offering employees everything from cash prizes to extra PTO for those who hit certain benchmarks (even inspiring the Season 5 premiere of “The Office” with a two-part episode collectively titled “Weight Loss” in which the staff competes to lose the most weight for the prize of three extra vacation days).

When the national conversation shifted away from the 90s “skinny culture” towards “body positivity” and inclusivity in the 2010s, many workplaces took note. Employer-sponsored wellness programs evolved with the times, dropping the focus on weight loss and turning towards burnout reduction and “lifestyle disease” prevention measures. Recognition of weight bias in work settings and discrimination against overweight employees became more commonplace, and Americans’ increasing mindfulness around body and disability language was slowly but steadily filtering into professional spaces.

Enter: GLP-1s. Better known by brand names like Ozempic, Wegovy, and Mounjaro (among others), GLP-1 receptor agonists are pharmaceuticals that have exploded in popularity in the past five years to fight obesity. As these medications have become more commonplace, so too has commentary on their effectiveness and their broader impact on society. Headlines like “Hollywood skinny is back,” “What happened to being body positive?” and “No One Knows How to Talk About Weight Loss Anymore” abound, and it seems like suddenly none of the pre-pandemic rules for how to approach one’s weight loss, or gain, apply.

So what does this all mean for employers? What counts as appropriate discussion of weight in the workplace these days, and what risks do employers run when diet talk permeates the office?

Comments on Diet and Weight Can Easily Become Circumstantial Evidence of Harassment, Even Unintentionally

Unlike race, sex, and disability (to name a few), weight is not considered a protected class under federal law. Michigan remains the only state in which weight discrimination is prohibited, joined only by a handful of municipal governments across the country (none of which are in Nevada). In other words, you can’t discriminate against someone for being overweight or underweight alone.

Still, bona fide discrimination and harassment/hostile work environment issues can arise when the topic of diet and weight loss arises at work.

What is Harassment Under Title VII?

To establish harassment/a hostile work environment under Title VII of the Civil Rights Act (Title VII), an employee must show that they were subjected to unwelcome conduct based on a protected characteristic that was sufficiently severe or pervasive to alter the conditions of employment.

The employee does not always have to show that the conduct in question was explicitly based on their membership in a protected class to have a valid harassment claim; circumstantial evidence (aka indirect proof that relies on inference) can be enough. For example, a female employee whose male counterparts only coordinate with each other for projects involving the company car may have a valid sex-based harassment claim even if the men don’t come out and say, “Women are bad drivers.”

Many valid harassment claims are based on a culmination of several pieces of circumstantial evidence (“pervasive” unwelcome conduct) rather than one severe instance of bad behavior.

When Diet Talk Becomes Legal Risk

When it comes to circumstantial evidence of a hostile work environment, a workplace culture of unfettered commentary on each other’s eating habits can quickly become a minefield.

A comment to a coworker who happens to be Asian about how the speaker “could never eat all that white rice” or to a coworker who happens to be Latino on how many “empty calories are in tortillas” could easily give rise to a race or national origin discrimination claim under Title VII of the Civil Rights Act, regardless of the speaker’s intent. Likewise, commenting on a Catholic coworker’s decision to pass on a burger at the company barbecue on a Friday, “You should really make sure you’re getting enough protein, you know,” may support a religious harassment claim if other circumstantial evidence is also present. 

Unsolicited observations about what a coworker is eating or drinking can also cross the line when sex, gender, or pregnancy enters the picture.

The more obvious examples include a man making a joke about “keeping up with the guys” when his female coworker orders the same steak as him at the company holiday party or a woman telling her male coworker he should “really be eating more if he wants to bulk up.” Potentially less obvious, but just as risky, is unsolicited advice from a woman to her younger female coworker about how she can “maintain her figure” or how the woman wishes “she could still eat like that” when she sees the younger coworker snacking throughout the day. In the same risky vein would be comments on a pregnant coworker’s caffeine intake or how she “really needs to be eating for two,” regardless of the commenter’s gender.

As with race and religion, the commenter’s intent is not a shield, and comments like this can (and often do) serve as evidence of a hostile work environment that employers have a duty to prevent.

ADA Implications of Diet and Weight-Related Comments

Perhaps more common than the examples described above are employees who comment on a coworker’s diet or weight gain/loss that stems from an underlying health condition without realizing it. The law that comes into play in that scenario, the Americans with Disabilities Act (ADA), is the federal law that overlaps the most with weight and diet-related concerns.

The ADA’s expansive language defines disability as a “physical or mental impairment that substantially limits one or more major life activities” and requires employers to make individualized inquiries into an employee’s specific limitations and potential reasonable accommodations. As such, the law provides broad coverage for a range of health conditions caused by or contributing to weight loss or gain, including protections against a hostile work environment based on one’s disability or features of it (like adherence to a particular diet or a change in weight).

Further, the ADA protects employees who are “regarded as” having a disability even if they, in fact, do not. That means a particularly large or particularly thin employee whose weight is not caused by an underlying condition may also have a valid harassment claim if their coworkers treat them as though their physical appearance is due to a health condition.

For example, a well-meaning employee who assumes their thin colleague has an eating disorder and keeps an eye on the colleague’s snack intake throughout the day, constantly encouraging them to “make sure they’re eating enough,” may actually be harassing someone who simply has a fast metabolism. On the flip side, an office manager who assumes their overweight colleague must have heart disease may be contributing to a hostile work environment by going out of their way to provide special “heart healthy” lunch options to that colleague only, even though the colleague never disclosed a health condition or requested any accommodation.

How to Avoid Discrimination Claims and Discussions of Weight Loss

The cultural moment around GLP-1 medications and dramatic weight loss has, in some respects, made weight a more acceptable topic of workplace conversation than it has been in years. That shift in social norms does not correspond to any shift in legal risk. If anything, it creates new opportunities for employer liability to arise in ways that existing policies and training programs may not anticipate.

Employers should take proactive steps to address diet and weight-related commentary in the workplace before it becomes a liability. That means training managers and employees to recognize how seemingly innocuous remarks can intersect with protected characteristics, and fostering a workplace culture in which unsolicited observations about a colleague’s body or eating habits are understood to be out of bounds.

In an era when no one seems quite sure how to talk about weight anymore, employers’ obligation to maintain a harassment-free workplace remains, and those who fail to get ahead of these conversations in the workplace do so at their own risk.

By: Shay Digenan, Esq.

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