Obesity causes disability but it is not a disability in itself

Employers’ nightmare. KenFagerdotcom, CC BY-NC-SA

The European Union is debating the legality of sacking an employee on the grounds that their excess weight prevented them from doing their job – a case that has surely been approaching for years.

The Danish courts put the question to the European Court of Justice (ECJ) on whether or not obesity is covered by EU legislation following a claim by child-minder Karsten Kaltoft that he was sacked for being too fat.

Kaltoft weighs approximately 160 kilograms (350 pounds) and says “bad habits” are behind his extra bulge. But, he argues, his weight never affected his performance at work and denies reports that he was unable to bend low enough to tie a child’s shoelaces: “I don’t know where they got that, because that is not true. I would just sit on the floor,” he said.

It isn’t the first time this issue has come up – a similar case was heard in the UK last year. The court found that obesity was not in itself a disability, rather that “obesity makes it more likely that someone would suffer from an impairment that could be a disability”.

In the UK at least, then, there remains no employment law that directly addresses discrimination against obesity. But if the European court rules that obesity is indeed a disability under the Equal Treatment Framework Directive, employers could potentially face new obligations in the workplace, such as adjustments to the furniture or disability parking for obese staff, as implications of this ruling will be binding across the EU.

Disabling disease

In the US, public health experts debated these types of questions about the legal implications of attaching new labels to obesity following the decision by the American Medical Association (AMA) to classify obesity as a disease last year.

Despite a committee of experts recommending against the classification, AMA delegates voted to approve the change in definition, and just like that a third of the US population became diseased.

The thinking behind the change was to increase the focus on obesity treatment and prevention. AMA president Ardis Hoven believed that it would help medical professionals come to grips with the complexities of obesity:

When we are sitting in the examining room and talking about things to prevent weight gain and promote weight loss, what this is going to enable us to do is put together tools and teaching and education around better ways to impact patient responsiveness around our concerns about their obesity.

The AMA knew their decision would bring all kinds of media attention -– with the increased awareness probably seen as a bonus. But not everyone who was overweight was happy – particularly among many of those who woke up to find they had a new disease. The #IAmNotADisease hastag went viral, while Lesley Kinzel, author of the book, Two Whole Cakes, became one of the most outspoken critics of the AMA’s decision, saying that the change would do more harm than good:

It says that a fat person is inherently sick, and in need of special treatment for this visible sickness. It makes me worried that doctors are going to be less able to listen to patients.

Normalising obesity

Some may wonder if this Danish case would have ever made it before the highest court in the land 20 or 30 years ago. About two-thirds of adults in developed countries are now obese or overweight, with a few extra pounds around the waist becoming the norm. With the majority now leaning towards the overweight, has it finally become culturally acceptable to be fat, and was it only a matter of time before the rise of obesity began to be reflected in legislation?

The conventional view is that obesity does not in itself render someone disabled -– rather the consequences of obesity, such as diabetes or reduced mobility, which are both substantial and long-term, are more like what falls within the statutory definition of disability.

Disability under EU legislation is one of the few areas of discrimination where protection is only available if the person can pass a “test” – based on the medical (as opposed to social) model of disability. The questions being asked by the Danes circle around whether or not other factors need to be demonstrated before someone can receive the legal protection against discrimination -– and if yes, should being obese trigger a duty of reasonable adjustment by employers.

Concerns about the stigma and complacency arising from labelling obesity as a disability (or a disease) are as a valid as those companies worried about being sued for discrimination. The ideal outcome must be for this public health issue to stay well out of the courts, but instead provide yet another clear justification for government leaders to invest heavily in population-wide obesity prevention.