Is severe obesity a disability?
Obesity can be categorized as “disability” in terms of the EU-guidelines for equal treatment in employment and occupation if there are distinct restrictions in the participation in professional life.
Severe or morbid obesity, also called adiposity, is one of the most common diseases of modern society – with a growing tendency worldwide. A rising body-mass-index (BMI) also increases the risk for secondary diseases, like type-2-diabetes, arteriosclerosis, fat metabolic disorder, hypertension, and fatty liver. The relevance of overweight, not only as a medical but also as a labor- and law-related issue has been shown by a verdict of the European Court of Justice (ECJ) of Dec.18, 2014.
The focus was on the interesting question: Does the existing legislation prohibit disadvantaging of persons with obesity? Furthermore, the ECJ resolved the question whether morbid obesity can be categorized as a disability. If this should be the case, severely overweight employees must not be disadvantaged due to their weight, e.g. in employing or dismissing colleagues.
Dismissal due to adiposity? – Lawsuit of an overweight employee
The legal background is the lawsuit of a Danish employee, who had worked as a day-care worker for children in the Danish municipality Billund for more than 15 years. He felt at a disadvantage when he was laid off, and attributed his dismissal to his severe adiposity. During his whole career his BMI had exceeded 30, classifying him as “obese”. At 1.72 meters he had weighted more than 160 kg. In his attempts to lose weight he had been supported financially by his employer. Yet, he had always regained the lost kilos. His dismissal on November 22, 2010 was – according to the municipality – due to the subsiding number of children at the day-care center. Why he and not one of his colleagues had to leave, remained unclear. Thereupon he sued Billund for the compensation of damages, arguing that he was the victim of “discrimination due to obesity”. The Danish court in Kolding asked the ECJ for assistance in this case.
The Court of Justice in Luxembourg came to the result that overweight does not automatically protected against discrimination. It is true that the general prohibition of discrimination is one of the basic rights and is mandatory for all European member states, but it is prerequisite that the examined case lies within the scope of the European law. This scope comprises the protection of individuals against discrimination due to race, origin, skin color, religion, age, sexual orientation, and disability. The European law does not prohibit the discrimination in professional life due to obesity. Therefore, a dismissal as a result of adiposity is not within the scope of European law.
Severe overweight individuals are only protected for the purpose of the General Equal Treatment Act if their overweight constitutes as a “disability”. This is the case if an employee is physically, mentally or psychologically handicapped in the long term, and thus cannot come up to the requirements of his work like healthy colleagues. This includes e.g. a restricted mobility or increasingly occurring secondary diseases. To the ECJ it makes no difference if the individual contributed to his or her “disability”. This means that there will not be a general job protection for overweight employees.
As to the Danish child-care worker a disability remains questionable, since he had been able to meet his work duties without restriction up to his dismissal. The Danish Court is now re-examining if his obesity could be defined as disability. In this instance the commune of Billund would have to prove that the obesity was not the reason for his dismissal.
Consequences of the ECJ judgment?
Not every overweight employee can however refer to the decision of the Court of Justice. The specific protection of the European ban of discrimination - in terms of disadvantaging persons with disabilities - does not automatically apply to this group of individuals. Nevertheless, employers will have to keep the prohibition of discrimination in mind when making decisions. The legal protection concerns not only staff dismissals but also promotions, and the rejection of job applicants. Individuals who are disabled in legal terms are subject to a certain protection e. g. against dismissal. If there is evidence that a worker has been laid off due to severe overweight, the employer has to prove that the wheight-issue has not been the reason. The violation of the protective legislation can result in compensation or damages claims.
Despite longstanding social discussions there are still problems in implementing equal treatment legislation e. g. of men and women, or of persons with and without a disability. Concerning adiposity the situation is aggravated by the fact that the vast majority of people assume that excessive overweight is self-inflicted. Studies by the IFB AdiposityDiseases have shown that the stigmatization and rejection of overweight men and women are prevailing in the population. There are still many barriers to overcome before we can achieve equal treatment of obese and normal weight people.
Silke Großmann
Doris Gabel