When insulting a worker’s weight isn’t bias
Here’s how this company got away with making fun of an overweight staffer — and why you shouldn’t do the same.
During the final five years Denise Luster-Malone worked for Cook County’s Stroger Hospital, she weighed around 300 pounds.
According to Luster-Malone, her supervisor, Antoinette Williams, made “several derogatory remarks about her weight,” including, in May 2009, that her “big fat ass needs to concentrate on losing weight or something to that effect.”
Although she gained a significant amount of weight, neither the county nor Luster-Malone said that her weight negatively impacted her work performance or her ability to do everyday things such as cooking and cleaning, grocery shopping, dancing or walking up and down stairs. (Though, toward the end of her employment, Luster-Malone did have trouble walking across the parking lot at work.)
2 incidents
In 2009, the county changed its policy so that certain positions weren’t eligible for OT without prior approval.
Nevertheless, Luster-Malone’s supervisor observed her filling out dates and hours on a blank request-for-overtime form that already noted the approval of two supervisors — despite the fact that, according to the county, office policy required supervisors to approve the form after it was completed.
After an investigation, the county determined that Luster-Malone had asked for reimbursement for 8.7 hours of overtime work that she hadn’t performed, and had asked two other employees to say that she’d been working when in fact the two employees hadn’t seen her there that day. Luster-Malone said she did work the overtime.
Luster-Malone was involved in a second incident in 2009. After being repeatedly asked to transfer certain electronic files to a flash drive, Luster-Malone returned the drive with only four files on it — leaving out the majority of the files that she’d been tasked to transfer.
Luster-Malone explains that although she had the drive for an hour and a half, her working time with the drive was drastically reduced when her diabetes required her to get food.
The county found that Luster-Malone had committed major fraud misconduct for her overtime incident and also faulted her for her flash drive incident. She was fired.
The court wasn’t having it
Then Luster-Malone sued, claiming disability bias.
The court noted that, while obesity can be a disability in rare instances or when it affects major life activities, it wasn’t one in Luster-Malone’s case.
As for her manager insulting her weight, the court ruled that wasn’t discriminatory either — it had come months before either incident, and was found unrelated to Luster-Malone’s firing.
Finally, the court said, the comment wasn’t the reason for conducting the investigation into both incidents.
Case closed.
What to do instead
Eric B. Meyer, writing for TLNT, had the major takeaway for HR:
While the plaintiff alleged that the comment was one of several derogatory statements made about her weight, federal anti-discrimination statutes like the ADA are not intended to be workplace civility codes.
In other words, merely being rude and disrespectful does not violate the law.
Still, comments like the one here can create big fat lawsuits that cost lots of money to defend. So, while they may not be illegal, please do not tolerate rude and disrespectful comments in the workplace.
Additionally, think about what you would do if an employee with weight issues comes to you requesting help to perform her position. Even though the obesity technically may not be a disability, consider engaging in an interactive dialogue to discern what reasonable accommodations, if any, will allow her to perform the essential functions of her job.
The cost of that accommodation will likely be far less than the lawsuit should you decline to provide it.
The case is Luster-Malone v. Cook County (h/t TLNT).
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