It is widely recognised that the world has an obesity problem. In 2005 a US medical school calculated that 10% of the world’s population was obese. It also calculated that if the trends visible then were to continue, we could see 1.2 billion obese people by 2030.
This has many impacts not least on the health of the individuals themselves. The question of whether obesity amounts to a disease and therefore potentially a disability, has been debated for years. If it is a disability it would potentially extend to millions of obese employees the protection against discrimination on grounds of disability now available in many jurisdictions worldwide. There would be no need to show that that complainant’s obesity is caused by some other protected category of illness or disability.
The direction of legal travel on this point appears to be towards obesity as a disability. If this is maintained, global employers will need to consider actions of the kind listed below.
Direction of travel
What indicates the direction of travel?
In the US, following an amendment of the law on disability in 2008, the Equal Employment Opportunity Commission has increasingly and successfully argued that obesity is a disability in itself.
In 2013 the American Medical Association declared obesity is a disease. While this is not binding on US courts, it will be influential. Some commentators have expected a large number of claims to follow on the strength of this declaration.
The EU has taken a more cautious step in the same direction. In a recent case involving a Danish child minder, the Advocate General, who in effect advises the European Court of Justice, gave an opinion that while obesity was not a protected category in its own right, severe or morbid obesity “most probably” did count as disability. He suggested “severe” meant someone with a body mass index of more than 40. However, complainants would still need to show the physical and mental implications of the condition. This opinion is not binding on the ECJ, but will often be followed. If it is, there will be implications for all EU member states.
The ECJ case has caused comment around the world and has resulted in a number of calls for reviews of obesity/disability rules.
What to do?
If the direction of travel is maintained and obesity comes widely to be treated as a disability – what will the employer need to consider?
Policies and handbooks : do amendments need to be made to the anti-discrimination sections – not least stating the unacceptability of “fattist” jokes and comments?
Training : do employees, HR and management need to be trained on obesity discrimination?
Recruitment, performance reviews and dismissals : are process reviews needed to ensure policy compliance?
Consideration : should new consideration be given to the working environment needs of obese employees?
Encouragement : should a good employer consider ways of encouraging and supporting overweight employees as they try to lose weight?
On the precautionary principle, it may be better to act sooner rather than later.