Is Obesity A Disability?
November 27, 2018
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Katharina Ó Cathaoir, PhD Fellow, University of Copenhagen
Is obesity a disability? Advocate General Jääskinen addressed this loaded inquiry yesterday 17 July 2014, inwards his anticipated opinion in Kaltoft v. Municipality of Billund. The instance has garnered media attending amongst practitioners together with journalists concerned past times the implications for employers together with health. The AG’s watch is non-binding. The Court volition number its ain judgment inwards the adjacent few months, which volition hold upwards binding on European Union fellow member states. However, inwards general, the Court tends to follow the AG’s opinion, although it is gratuitous to depart therefrom.
What is obesity?
An adult is classified equally having obesity if he or she has a body-mass index (BMI) of over thirty (mass kg/ elevation m2). In most European states, the charge per unit of measurement of obesity has doubled inwards the concluding 20 years. On average at to the lowest degree 17% of the adult European population is obese. As a result, the public, together with Blue Planet together with interstate bodies increasingly await for solutions to the obesity “epidemic”. Generally, obesity is linked to lack of physical activity together with the consumption of equally good many calories. However, environmental factors, such equally walkability, mightiness to afford together with access healthful food, together with opportunities to practice may contribute. There is bear witness of a link betwixt depression socio-economic status together with obesity. Long term weight loss, although possible, is non maintained past times everyone.
Facts of the case
Kaltoft worked equally a kid minder for fifteen years amongst the Municipality of Billund. For the entirety of this fourth dimension Kaltoft was obese, weighing no less than 160kg. During a catamenia of i twelvemonth he was provided amongst fiscal assistance past times the Municipality to attend fitness together with physical preparation sessions. He also unsuccessfully pursued bariatric surgery. Contrary to what has been reported, it has non been established that Kaltoft was dismissed due to his obesity. This volition hold upwards a thing for the Danish courtroom to create upwards one's heed next the preliminary ruling of the CJEU. Furthermore, Kaltoft, inwards a BBC interview, denied that he was unable to necktie the children’s shoelaces equally had been reported. Instead, both parties seem to hold that Kaltoft was fully capable of fulfilling his position.
Mr Kaltoft was non formally given reasons for his dismissal although the Municipality contends it was due to a decline inwards the number of children making work of the service. Mr Kaltoft, however, alleges that his obesity was broached at his dismissal hearing together with declared a ground for the decision. As a result, Mr Kaltoft argued that he had been unlawfully discriminated against due to his obesity together with sought damages. The Danish courtroom referred 4 questions to the CJEU for preliminary ruling.
Question 1: Is it reverse to European Union law, equally expressed, for example, inwards Article half dozen TEU concerning key rights, mostly or especially for a public-sector employer to discriminate on grounds of obesity inwards the labour market?
The AG succinctly opined that obesity does non autumn nether whatever full general prohibition of discrimination nether European Union labour discrimination law. Jääskinen considered that the Charter of the Fundamental Rights of the European Union did non apply equally Kingdom of Denmark was non implementing European Union constabulary equally such. The sufficient grade of connector amongst European Union constabulary inwards a higher house together with beyond the fact that “matters covered are closely related, or i of those matters has an indirect touching on on the other” was non met. Furthermore, equally Articles 10 together with xix TFEU, equally good equally Directive 2000/78 (the work equality Directive, which bans discrimination inwards work on grounds of disability, age, organized religious belief 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 non hold upwards seen equally establishing a full general prohibition against discrimination. Thus, the AG rejected a to a greater extent than expansive interpretation of discrimination inwards European Union constabulary equally argued past times Kaltoft.
Having swiftly disposed of the get-go 3 questions (the bit ii were nullified past times the get-go respond inwards the negative), the AG engaged inwards a detailed analysis of the concepts of disability together with obesity.
Question 4: Can obesity hold upwards deemed to hold upwards a disability covered past times the protection provided for inwards Council Directive 2000/78EC… together with if so, which criteria volition hold upwards decisive for the assessment equally to whether a person’s obesity agency specifically that that mortal is protected past times the probation of discrimination [on] grounds of disability equally position downwards inwards that directive?
The AG excluded the possibility that obesity per se would amount to a disability nether Directive 2000/78. However, obesity of a surely severity may amount to a disability, provided it fulfils the criteria position out inwards instance law.
It should hold upwards emphasized that at that spot is limited back upwards for obesity per se equally a disability. In the United States, in many states, obesity must hold upwards accompanied amongst a physiological status to qualify equally a disability. However, the Equal Employment Opportunity Commission (EEOC) has stated that “severe obesity, which has been defined equally trunk weight to a greater extent than than 100 percent over the norm, is clearly an impairment” together with has succeeded on this ground inwards a number of federal cases. Thus, obesity must achieve a higher, to a greater extent than extreme threshold to hold upwards a disability per se.
Classifying obesity equally a disability
Disability is non defined past times the Employment Equality Directive. However, the Directive must, equally far equally possible, hold upwards interpreted consistently amongst the United Nations Convention on the Rights of Persons amongst Disabilities (UNCRPD). The AG followed the Definition of disability offered inwards previous instance law:
“A limitation which results inwards particular from physical, mental or psychological impairments which inwards interaction amongst diverse barriers may hinder the total together with effective participation of the mortal concerned inwards professional person life on an equal ground amongst other workers.”
This limitation must hold upwards long term. The AG, equally inwards the aforementioned case, relied heavily on the UNCRDP together with acknowledged disability equally an evolving concept.
Thus, the AG concluded that “mere” obesity is insufficient to amount to a disability, instead “most in all likelihood exclusively WHO grade III obesity, that is severe, extreme or morbid obesity, volition create limitations, such equally problems inwards mobility, endurance together with mood”.
The AG also stated that it would hold upwards absurd if the individual’s mightiness to deport out his piece of work excluded him from the Directive. Thus, the long term status must displace limitations “in total together with effective participation inwards professional person life in general on equal damage amongst persons non having the condition”. This may hold upwards due to “physical together with or psychological limitations”.
Interestingly, the AG also addressed the number of the root of the disability. Whether the person’s obesity tin sack hold upwards traced to his ain behavior or an external factor was deemed irrelevant. The AG pointed out that many other disabilities may occur due to negligence or guide a opportunity taking together with avoid the moral spotlight.
The implications of disability
Under the European Union Employment Equality Directive, an employer has a duty to reasonably accommodate an employee amongst a disability. Article 5:
“In club to guarantee compliance amongst the regulation of equal handling inwards relation to persons amongst disabilities, reasonable accommodation shall hold upwards provided. This agency that employers shall accept appropriate measures, where needed inwards a particular case, to enable a mortal amongst a disability to cause got access to, participate in, or advance inwards employment, or to furnish preparation for such a person, unless such measures would impose a disproportionate burden on the employer. When this burden is, to a sufficient extent, remedied past times existing measures equally an chemical constituent of disability policy inwards the Member State, it should non hold upwards considered disproportionate.”
Thus, the duty is non absolute together with the employer may present equally a defense forcefulness that accommodation would impose a “disproportionate burden”. Furthermore, equally the AG highlighted, the employer is non required to hold an private who cannot “perform the essential functions of the post”. Thus, some of the panic regarding the broad reaching ramifications of the conclusion appears exaggerated.
Recital 20 of the Preamble suggests such accommodation could include “premises together with equipment, patterns of working time, the distribution of tasks or the provision of preparation or integration resources”. However, the assessment volition depend on the particular individual.
The Preamble also gives some guidance amongst regard to assessing whether whatever particular accommodation amounts to a disproportionate burden inwards Recital 21:
"To determine whether the measures inwards inquiry give ascension to a disproportionate burden, occupation organization human relationship should hold upwards taken inwards particular of the fiscal together with other costs entailed, the scale together with fiscal resources of the arrangement or task together with the possibility of obtaining populace funding or whatever other assistance."
Comment
In Against Health; How Health became the novel Morality, Kirkland together with others condemn the work of “health” to brand value judgments together with moral assumptions on an individual. The approach of the AG, inwards concentrating on the functionality of the individual, instead of causality together with responsibility, avoids this. However, some commentators fearfulness that tackling obesity discrimination may serve to back upwards or normalise obesity. Will large numbers of employers forthwith hold upwards discipline to costly implications? Is it insulting to deem a potentially “curable” status a disability? With the “fight” against obesity staunchly declared, is it reverse to populace wellness to pull obesity equally a disability requiring protection from discrimination? Will this watch medicalise fat individuals together with farther take their feel of personal responsibility?
The experiences of fat persons should non hold upwards ignored. Discrimination inwards work together with healthcare is good documented together with appears to hold upwards increasing. The AG has adopted a balanced seat whereby exclusively severe obesity could hold upwards a disability on its own. In reality, this covers exclusively a little percent of fat persons, especially considering the long term requirement. The bulk of fat persons seek to lose weight but some, similar Kaltoft, despite efforts, neglect to produce so. Factors such equally diet together with preventability play into other recognised disabilities, such equally diabetes.
It is contended that stigma together with discrimination should never hold upwards inwards the arsenal of a state’s populace wellness policy. Indeed, it appears that shame is a major factor that inhibits persons amongst obesity from engaging amongst wellness attention professionals together with exercise. Thus, stigma is unlikely to decrease the number of fat persons. Furthermore, having a disability should non hold upwards seen equally infantilising but instead encouraging total equal participation.
Conclusion
The watch volition assay equally good moderate for some together with extreme for others. While the AG did non larn together with then far equally to declare obesity per se a disability, he did advise extreme obesity could hold upwards a disability. Despite showing an agreement influenced past times a rights based approach, labelling people amongst obesity of a surely severity needs farther exploration. It does non seem fully clear equally to why the AG inwards particular identified Class III obesity equally the exclusively category per se justifying recognition equally a disability. Further explanation equally to what limitations split upwards an private amongst a BMI of 39 from a BMI of xl is needed. Furthermore, employers must avoid stigmatising or insensitive identification of employees on the ground of physical characteristics, no thing how good intentioned.
Barnard & Peers: chapter 20
