The NY Post recently reported ( an ex-AIG employee commenced an employment discrimination lawsuit in Federal Court, claiming he was the subject of a hostile-work environment under Title VII and the Americans with Disabilities Act (ADA), stemming from taunts about his race and weight. Earl Brown, 43, an African-American Ivy league-educated lawyer, claimed that on occasion his superior taunted him saying, “Hey! Hey! Hey! It’s Fat Albert!” and in similarly disparaging fashion, “Make sure you grab a bite to eat before this one does! He’s been known to clean out a Danish platter.” No, I am not making this up, as silly and far-fetched as it may seem.  Nevertheless, all claims of hostile-work environment should be taken very seriously and analyzed carefully.

There seem to be two major issues herein. First, the claim for hostile work environment is pretty weak on its face. Mr. Brown has an enormous hurdle to climb in proving such a claim, since Courts normally require an employee show an overly inhospitable and borderline threatening workplace environment. In determining whether Mr. Brown has sufficiently alleged a hostile-work environment claim, the Court will assess a number of factors including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. These factors will be evaluated from both a reasonable person’s standpoint as well as from the plaintiff’s subjective perception. Generally, occasional events of harassment or isolated remarks will not merit relief under Title VII. In order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive. However, a single event can create a hostile environment if the employer’s conduct is sufficiently severe, as in the case of sexual assault. Ultimately, whether a workplace will be viewed as hostile or abusive depends on the totality of the circumstances. Despite Mr. Brown’s claim that these comments severely affected his workplace environment, a reasonable person could argue these comments were simply made in jest. Even if taken to be certifiably serious, the target characteristic of these comments was Mr. Brown’s obesity, and not his race, which unlike his obesity, qualifies him under a protected class. Now, onto the second major problem for Mr. Brown, whether his obesity qualifies as a disability under the ADA.

Under the ADA, “disability” is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” The first prong of this definition, physical or mental impairment, is further defined as: “any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body system: … musculoskeletal, … respiratory … cardiovascular…”

Mr. Brown should have no problem demonstrating that his obesity affects his musculoskeletal, respiratory, and cardiovascular systems.   However, the second prong requires that he prove a substantial limitation, in other words, show he is unable to perform a major life activity that the average person can perform or show he is significantly restricted as to the condition, manner or duration under which he can perform a particular major life activity compared to the average person. In determining whether an individual is substantially limited, the nature and severity of the impairment, the duration or expected duration of the impairment, and the actual or expected permanent or long term impact of or resulting from the impairment is considered. Mr. Brown simply claims that he has difficulty walking long distances.  This is not going to cut it under the ADA requirements.  Additionally, the interpretative guidelines for the ADA indicate that obesity should not be considered a disabling impairment, except in rare circumstances. However, it is important to note that New York Courts tend to be more lenient in their assessment of a disability and have held that gross obesity can qualify as a disability under the New York Executive Law and New York City Human Rights Law.

Although many employees are subjected to a hostile work environment for a variety of different reasons such as discrimination based on age, race, genderdisability, pregnancyreligion, national origin, and sexual orientation (only in New York City), unfortunately, this looks like a losing battle for Mr. Brown.

If you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact the Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.

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