A New York City law that prohibits discrimination based on an individual’s weight came into effect on 26 November 2023. This reform precedes a similar proposal gaining ground in Colorado, where draft legislation will be considered next year that would ban obesity discrimination by employers.
Here in the UK, singer Cliff Richard has recently been criticised for making ‘fat-shaming’ comments when discussing turning down a photo opportunity with Elvis Presley in the late 1970s as he’d put on a lot of weight.
Despite the progress made over the past decade on embracing diversity and inclusion initiatives within the workplace, stigma on the basis of overweight and obesity remains a challenge in the UK jobs market.
Studies have shown that 45 per cent of employers are less inclined to recruit candidates if they are overweight or obese, and that women living with obesity face a ‘wage penalty’ of up to 13 per cent compared with their female peers.
Weight-based stigma is evident throughout the employment lifecycle, with employers apparently not understanding the causes of obesity, associating it with negative personality traits including laziness, and seeking employees who better fit the ‘image’ which the company wishes to project to customers and clients.
The current legal landscape
Obesity discrimination is not currently afforded legal status as a protected characteristic under the Equality Act 2010 (EqA 2010). However, obesity-related conditions (eg, osteoarthritis), may be in scope where an employee is able to satisfy the legal definition of a disability under EqA 2010. In particular, where the individual can show they have a ‘physical or mental impairment’ on normal day-to-day activities and there is a long-term substantial adverse effect.
For an employment tribunal to assess whether someone is disabled, The Equality Act (EqA) 2010’s guidance indicates the tribunal must focus on the effect of the impairment, rather than seeking to establish its cause.
Whether a person living with obesity is protected under EqA 2010 is therefore a case-by-case analysis, and there will inevitably be situations where an employee is discriminated against because of their actual or perceived weight and has no recourse through UK equality law.
Employers owe implied duties of trust and confidence to their employees, and where a person is treated unfairly in respect of remuneration, promotion or other conditions of employment because of their weight, legal, regulatory and reputational issues may still arise.
Change on the horizon?
Given the workplace stigma and discrimination individuals experience concerning their weight, there have been increasing calls over the past decade as to whether obesity should become a protected characteristic under EqA 2010.
While there does not appear to be any support from the current government to make this a reality, there have been other attempts to bolster employee protections, for example through the introduction of a Private Member’s Bill which would have created a statutory definition of bullying at work and enabled claims relating to workplace bullying to be considered by an employment tribunal. All of this would have provided for adjacent protection from weight-based stigma and unfair treatment. Although this particular law will not make it onto the statute books, it is widely accepted that the employment landscape will become more employee-friendly should the Labour Party win in next year’s general election.
Employers can still lead by implementing robust policies on equal opportunities and anti-harassment and bullying, and work to raise awareness and understanding within their organisations to help strip away stigma in this area.
Daniel Stander is an employment lawyer at Vedder Price