Friday, 18 July 2014

Is obesity a disability?

Katharina Ó Cathaoir, PhD Fellow, University of Copenhagen

Is obesity a disability? Advocate General Jääskinen addressed this loaded question yesterday 17 July 2014, in his anticipated opinion in Kaltoft v. Municipality of Billund. The case has garnered media attention with practitioners and journalists concerned by the implications for employers and health. The AG’s opinion is non-binding. The Court will issue its own judgment in the next few months, which will be binding on EU member states. However, in general, the Court tends to follow the AG’s opinion, although it is free to depart therefrom.

What is obesity?
An adult is classified as having obesity if he or she has a body-mass index (BMI) of over 30 (mass kg/ height m2). In most European states, the rate of obesity has doubled in the last twenty years. On average at least 17% of the adult European population is obese. As a result, the public, and state and interstate bodies increasingly look for solutions to the obesity “epidemic”.  Generally, obesity is linked to lack of physical activity and the consumption of too many calories. However, environmental factors, such as walkability, ability to afford and access healthful food, and opportunities to exercise may contribute. There is evidence of a link between low socio-economic status and obesity. Long term weight loss, although possible, is not maintained by everyone.

Facts of the case
Kaltoft worked as a child minder for 15 years with the Municipality of Billund. For the entirety of this time Kaltoft was obese, weighing no less than 160kg. During a period of one year he was provided with financial assistance by the Municipality to attend fitness and physical training sessions. He also unsuccessfully pursued bariatric surgery. Contrary to what has been reported, it has not been established that Kaltoft was dismissed due to his obesity. This will be a matter for the Danish court to decide following the preliminary ruling of the CJEU. Furthermore, Kaltoft, in a BBC interview, denied that he was unable to tie the children’s shoelaces as had been reported. Instead, both parties appear to maintain that Kaltoft was fully capable of fulfilling his position.
Mr Kaltoft was not formally given reasons for his dismissal although the Municipality contends it was due to a decline in the number of children making use of the service. Mr Kaltoft, however, alleges that his obesity was broached at his dismissal hearing and declared a reason for the decision. As a result, Mr Kaltoft argued that he had been unlawfully discriminated against due to his obesity and sought damages. The Danish court referred four questions to the CJEU for preliminary ruling.

Question 1: Is it contrary to EU law, as expressed, for example, in Article 6 TEU concerning fundamental rights, generally or particularly for a public-sector employer to discriminate on grounds of obesity in the labour market?
The AG succinctly opined that obesity does not fall under any general prohibition of discrimination under EU labour discrimination law. Jääskinen considered that the Charter of the Fundamental Rights of the EU did not apply as Denmark was not implementing EU law as such. The sufficient degree of connection with EU law above and beyond the fact that “matters covered are closely related, or one of those matters has an indirect impact on the other” was not met. Furthermore, as Articles 10 and 19 TFEU, as well as Directive 2000/78 (the employment equality Directive, which bans discrimination in employment on grounds of disability, age, religion or sexual orientation), Council Directive 2000/43/EC of 29 June 2000 (the race equality Directive) etc., address specific, exhaustive grounds of non-discrimination. These could not be seen as establishing a general prohibition against discrimination. Thus, the AG rejected a more expansive interpretation of discrimination in EU law as argued by Kaltoft.
Having swiftly disposed of the first three questions (the second two were nullified by the first answer in the negative), the AG engaged in a detailed analysis of the concepts of disability and obesity.

Question 4: Can obesity be deemed to be a disability covered by the protection provided for in Council Directive 2000/78EC… and if so, which criteria will be decisive for the assessment as to whether a person’s obesity means specifically that that person is protected by the probation of discrimination [on] grounds of disability as laid down in that directive?
The AG excluded the possibility that obesity per se would amount to a disability under Directive 2000/78. However, obesity of a certain severity may amount to a disability, provided it fulfils the criteria laid out in case law.
It should be emphasized that there is limited support for obesity per se as a disability. In the United States, in many states, obesity must be accompanied with a physiological condition to qualify as a disability. However, the Equal Employment Opportunity Commission (EEOC) has stated that “severe obesity, which has been defined as body weight more than 100 percent over the norm, is clearly an impairment” and has succeeded on this basis in a number of federal cases. Thus, obesity must reach a higher, more extreme threshold to be a disability per se.

Classifying obesity as a disability
Disability is not defined by the Employment Equality Directive. However, the Directive must, as far as possible, be interpreted consistently with the UN Convention on the Rights of Persons with Disabilities (UNCRPD). The AG followed the definition of disability offered in previous case law:  
A limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.”
This limitation must be long term. The AG, as in the aforementioned case, relied heavily on the UNCRDP and acknowledged disability as an evolving concept.
Thus, the AG concluded that “mere” obesity is insufficient to amount to a disability, instead “most probably only WHO class III obesity, that is severe, extreme or morbid obesity, will create limitations, such as problems in mobility, endurance and mood”.
The AG also stated that it would be absurd if the individual’s ability to carry out his work excluded him from the Directive. Thus, the long term condition must cause limitations “in full and effective participation in professional life in general on equal terms with persons not having the condition”. This may be due to “physical and or psychological limitations”.
Interestingly, the AG also addressed the issue of the origin of the disability. Whether the person’s obesity can be traced to his own behaviour or an external factor was deemed irrelevant. The AG pointed out that many other disabilities may occur due to negligence or risk taking and avoid the moral spotlight.

The implications of disability
Under the EU Employment Equality Directive, an employer has a duty to reasonably accommodate an employee with a disability. Article 5:
“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to provide training for such a person, unless such measures would impose a disproportionate burden on the employer. When this burden is, to a sufficient extent, remedied by existing measures as an element of disability policy in the Member State, it should not be considered disproportionate.”
Thus, the duty is not absolute and the employer may show as a defence that accommodation would impose a “disproportionate burden”. Furthermore, as the AG highlighted, the employer is not required to maintain an individual who cannot “perform the essential functions of the post”. Thus, some of the panic regarding the wide reaching ramifications of the decision appears exaggerated.
Recital 20 of the Preamble suggests such accommodation could include “premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources”. However, the assessment will depend on the particular individual.
The Preamble also gives some guidance with regard to assessing whether any particular accommodation amounts to a disproportionate burden in Recital 21:
"To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance."

In Against Health; How Health became the new Morality, Kirkland and others condemn the use of “health” to make value judgments and moral assumptions on an individual. The approach of the AG, in concentrating on the functionality of the individual, instead of causality and responsibility, avoids this. However, some commentators fear that tackling obesity discrimination may serve to support or normalise obesity. Will large numbers of employers now be subject to costly implications? Is it insulting to deem a potentially “curable” condition a disability? With the “fight” against obesity staunchly declared, is it contrary to public health to describe obesity as a disability requiring protection from discrimination? Will this opinion medicalise obese individuals and further remove their sense of personal responsibility?
The experiences of obese persons should not be ignored. Discrimination in employment and healthcare is well documented and appears to be increasing. The AG has adopted a balanced position whereby only severe obesity could be a disability on its own. In reality, this covers only a small percentage of obese persons, especially considering the long term requirement. The majority of obese persons seek to lose weight but some, like Kaltoft, despite efforts, fail to do so. Factors such as diet and preventability play into other recognised disabilities, such as diabetes.
It is contended that stigma and discrimination should never be in the arsenal of a state’s public health policy. Indeed, it appears that shame is a major factor that inhibits persons with obesity from engaging with health care professionals and exercise. Thus, stigma is unlikely to decrease the number of obese persons. Furthermore, having a disability should not be seen as infantilising but instead encouraging full equal participation.


The opinion will prove too moderate for some and extreme for others. While the AG did not go so far as to declare obesity per se a disability, he did suggest extreme obesity could be a disability. Despite showing an understanding influenced by a rights based approach, labelling people with obesity of a certain severity needs further exploration. It does not seem fully clear as to why the AG in particular identified Class III obesity as the only category per se justifying recognition as a disability. Further explanation as to what limitations separate an individual with a BMI of 39 from a BMI of 40 is needed. Furthermore, employers must avoid stigmatising or insensitive identification of employees on the basis of physical characteristics, no matter how well intentioned. 

Update: the CJEU gave its judgment in this case in December 2014. See discussion here.

Barnard & Peers: chapter 20 

1 comment:

  1. It is both absurd and extremely worrisome that a condition largely caused by lifestyle can be treated the same way as a genuine disability such as blindness. At the very least why not create a special category of disability...."aggravated disability" for instance, which would not grant protections without also obliging the obese person to engage in a program of lifestyle modification in order to correct the condition.

    If not, what is being done here is to take accommodation to such an extreme degree that the accommodated lose any motivation to take responsibility for their problematic behavior. What next? An alcoholic who is only able to show up at work an average of 3 days a week must be paid the same as his / her sober colleagues working a full week?