The European ruling on obesity and discrimination

The Denmark case

In 2010, Karsten Kaltoft, a Danish childminder, brought an employment law case for unfair dismissal against his employer, a Danish city council. Kaltoft had been working for 15 years looking after children in his own home in Billund, when his employment contract was terminated in 2010. Kaltoft claimed that obesity was part of the reason that he lost his job and that it amounted to unfair dismissal. Billund city council denied the claim.

This case was referred by the Danish courts to Europe for guidance, making it a test case. The European Union Court of Justice was asked to rule on two matters:

i) Does EU law forbid discrimination on the grounds of obesity?; and

ii) Can obesity be considered a disability?

On 17th July 2014, Niilo Jääskinen – the advocate general, who advises the European court in Luxembourg – ruled that EU law does not forbid discrimination on the grounds of obesity but that EU law offers general protection against discrimination on the grounds of disability.

There were two specific judgements given by Niilo Jääskinen, which were of great importance. First, he gave a guide that morbid obesity (officially defined as a BMI of 40+) could be considered a disability. “If obesity has reached such a degree that it plainly hinders participation in professional life, then this can be a disability,” Jääskinen said. (Kaltoft had a BMI of 54 and one of the work related examples cited in reports about this case was that he was unable to help children tie their shoelaces, although this has been denied by Kaltoft who said that he was able to do all aspects of his job).

Second, Jääskinen dismissed the notion that a “self-inflicted” disability could be any less worthy of protection, saying “the origin of the disability is irrelevant”.

The ruling

The EU ruling was made on 18th December 2014. The substantial difference between the final ruling and the July position from the advocate general is that the December final ruling did not specify a particular BMI at which disability could be a consideration.

The ruling upheld the advocate general’s view that, in principle, obesity in itself is not a disability – but that if someone had a long-term impairment because of their disability, then they could be protected by disability legislation.

Following this ruling, Kaltoft’s particular case will revert to the Danish courts to decide whether it meets the criteria for disability under the ruling. Interestingly – this case will come down to whether or not there were aspects of Kaltoft’s job that he was unable to undertake. As mentioned above, the initial reporting of this case claimed that Kaltoft was unable to do certain aspects of his job – tie the childrens’ shoe laces.

In this article Kaltoft said that he had no such problems. I heard Kaltoft on the BBC 1pm news on 18th December 2014 saying the same – that he had no problems fulfilling the requirements of his role. This means that he will fail on his disability claim! It will not be his size, per se, that determines the case, but whether or not his size has created a long-term impairment. If it hasn’t, he can’t be protected by disability discrimination law.

The UK law & the consequences of the Danish case

The Equality Act 2010 defines disability as “a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on a person’s ability to do normal daily activities”.

For as long as the UK is part of Europe we are bound by European employment law judgements. Once Europe has judged a case, it then becomes case law.

I have not yet seen if the “self-inflicted is irrelevant” aspect of Jääskinen’s judgement has been reinforced in the ruling. Assuming that it has been, these are the principles that have been established by the ruling:

1) Morbid obesity will not be a disability in itself, but is someone has a long-term impairment because of their disability, then they could be protected by disability legislation. (There is no BMI guideline for this; it will vary by person, by situation – Christmas for lawyers).

2) Employers will not be allowed to argue that the disability is “self inflicted”. As Jääskinen said “The origin of the disability is irrelevant”.

3) Disability legislation already requires employers to make ‘reasonable’ adjustments for disabled people to be able to participate in the workplace. Examples include: making sure that the workplace is accessible (entrance; canteen; toilets etc); providing hearing/sight impairment support as needed; adjusting chairs/desks/equipment as necessary etc.

The implications of the Danish case are that all European employers will need to make reasonable adjustments for obese people (employees and visitors). This case has wider implications too, as providers of goods and services will also need to make reasonable adjustments.

One of the examples cited by Clive Coleman, the BBC’s legal correspondent, during media discussions today (and here) was that it would probably be considered reasonable for a Premiership football club to be able to offer an obese person two seats, while a small, non-league club, with a few hundred seats would not be obliged to do so.

It wasn’t so long ago that Air France introduced a policy of people needing to pay for two airplane seats if they needed two seats. This ruling would see Air France fall foul of the law if they did not offer a second seat for free!

Discussion

I used to be a VP for Human Resources. This case is thus the perfect marriage of my past and current lives. I’m going to focus on two interesting points from a human resources point of view:

Is the protected characteristic avoidable?

The big debate in discrimination law has historically been – is the protected characteristic avoidable? Sex and race were the first attributes to fall under discrimination protection because it was held that someone could not change their gender or race and therefore to judge someone for something they could not change was unfair. Interestingly, we can now change gender and we have since protected gender change under discrimination law.

The debate that preceded sexual orientation and religion being added to “protected attributes” centred around – were these choices or characteristics that someone could do nothing about. The debate that preceded age was one of the most interesting. It must be a fact that we can do nothing about the age we are – we can’t ‘help’ being 18 any more than we can ‘help’ being 80. However, age is an interesting one because it is the only protected attribute that every one of us will experience. If we live long enough, we will be 18 and 80 and every age in between. It was the first protection, therefore, for everyone, but applying differently at different times of our lives. The law says we should no more be excluded from a job because we are 18 than if we are 80. If we can do the job, we should be given the same opportunity as anyone of any other age.

The Jääskinen judgement was most interesting for his comments about the origin of the disability. By stating that “self-inflicted” is no defence for an employer (or provider of goods and services), Jääskinen pre-empted this ‘avoidable or not’ debate for obesity. He effectively declared irrelevant the debate about whether or not the condition is avoidable.

Can the person do the job?

The second, even more interesting, point for me is that discrimination legislation has always been about discrimination. That sounds obvious, but it’s a critical point – let me explain… Discrimination legislation has protected against prejudice. It has protected someone from not being given the same opportunity and treatment because of some protected characteristic e.g. a person not being given a job because of their race; gay men not being able to stay at a Christian B&B etc (the latter is doubly problematic as both religion and sexual orientation are protected, so which protection trumps the other?)

In every aspect of discrimination legislation to date, the ability to do the job has been the founding principle. Indeed discrimination can only be found where the ability to do the job is not in question. A white person applies for a job and gets an interview; an Asian person with the same qualifications applies for the job and doesn’t get an interview – that’s discrimination. If the Asian person is not qualified for the job and doesn’t get an interview, there’s no discrimination case.

This obesity ruling has turned this entire principle upside down. It has declared that disability will only apply where the person is unable to do the job. Can you imagine this applying to the other protected characteristics? A man can’t do this particular job but, this being the case, if we don’t give him the job we will be discriminating against him, so we must make reasonable adjustments so that he can do the job?! Seriously?

The huge implication of this ruling for employers is that they cannot reject someone for not being able to do a job if the reason for not being able to do the job is their weight. My friend’s niece has just gone through rigorous medical tests to be a police officer – weight, fitness and all sorts. Do the police now have to make reasonable adjustments for anyone to be a police officer, regardless of their ability to chase a criminal? There has always been a height requirement for the forces and air stewards (one needs to be able to reach the overhead lockers). Will there now still be a height requirement but, if someone can’t move easily down the aisles, easyJet needs to make reasonable adjustments?

The radio debates today have been about obese people. Can obese people do anything about their condition? Will there be resentment if obese people are given blue badges. I’ve even heard people saying – “giving them blue badges won’t help – because they won’t walk as far and will get more obese”. The debates have been dominated by the usual “greedy”, “lazy” ignorant kinds of opinion.

For me, the most interesting outcome of the ruling is that, for the first time in discrimination history, protection has been given to only those unable to do a particular thing (carry out particular work, sit in one seat etc). Additionally the onus is now on employers and providers of goods and services to work out how they get around this. I anticipate some extraordinary case law to follow from this unprecedented and possibly unworkable decision.

 

 

11 thoughts on “The European ruling on obesity and discrimination

  • avatar
    February 7, 2015 at 8:07 am
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    Hi Zoe. Actually when I was studying criminal justice (near the dawn of time) I learned about a case with the LAPD. It was observed that due to requirements with fitness, strength and more, about 7 of 10 men passed the police academy in Los Angeles CA USA but only about 3 out of 10 women did. Women sued and the requirements were dropped, to prevent discrimination against women.

    I see this as the worst possible outcome — I’m a woman but so what, I’d feel safer knowing a female cop had the job because she was tough enough to pass, rather than that she (and now lots more men too), were even less competent.

    PJ

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  • avatar
    January 8, 2015 at 6:47 am
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    I may have this completely wrong, but could someone the claim alcoholism as a disability under these rules? If true, then it would require employers to make provision and exception for alcoholic employees. Not sure I would be too keen on flying, riding or driving anywhere in the EU if that were the case.

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  • avatar
    January 3, 2015 at 9:54 pm
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    I don’t think your implication that Kaltoft is in a catch 22 is actually the case – I think I’m right in saying that the discrimination act also protects people who are merely *perceived* to have a protected characteristic, regardless of whether they actually do. This helps to protect people who are “mis-labelled” when they are discriminated against. Because I could easily perceive someone to be more impaired than they are, this should accommodate a wider range of BMIs and thus make that part of Kaltoft’s claim to protection under disability easier to defend.

    Either Kaltoft was not impaired at doing his job (and therefore if there is no other cause given for dismissal his employer may have discriminated) or, he was impaired at doing his job but the employer could have made an reasonable adjustment to counteract the impairment (which they could at least have explored – something like a step, high chair or platform, or even a request to parents for velcro shoes would probably all be defined as “reasonable” for a largish employer like a council)

    It’s a good thing that avoidability and self-infliction were quashed as arguments. Partly because the scientific evidence tends to strongly indicate that obesity is chiefly caused by a number of biological factors beyond our conscious control (including genetics, pre-birth nutrition, unconscious microbiological processes). Partly also because it is possible to change one’s religious beliefs or racial appearance, but one should not have to do so to get a job…

    Even discounting the self-infliction argument, since long-term obesity is almost invariably accompanied by other health conditions associated with metabolic syndrome, in the future it will probably continue to be treated as a disability for legal purposes. Air france (and every other sitting-down based business) may eventually have to offer the same level of provision for the obese that they already to to those who are wheelchair bound – some specially adapted seating area near the exit, I suppose.

    I think ability to do the job is *always* in question in matters of discrimination, and the principle has not been turned upside down at all – the law protects against the prejudiced *perception* that a disabled (or christian/black/gay etc) person would be unable to do the job despite reasonable adjustments, or that reasonable adjustment is not possible. If they actually are unable to perform the job, *despite* reasonable adjustments, then of course there are non-discriminatory grounds for dismissal. This ruling on impairment due to obesity is not a first in the way you describe at the end of your post.

    For example employers already have to make reasonable adjustments that enable their muslim employees/customers to pray, transgender employees/customers to use the toilet, disabled employees/customers to sit at their desks or get out of the fire exits. If employers lack the open mindedness/imagination to make reasonable adjustments (hint: ask the employee!) for an equally qualified job candidate, then they are discriminating unfairly.

    The example of the forces and police etc is surely not that tricky to unpack? Some jobs have a physical component. Some of the physical requirements, as it turns out, are flexible or not universally applicable, but some are pretty crucial. The height of (and need for) overhead lockers remains fairly immutable as long as airplanes are circular in cross section – but the width of aisles and seats is not limited by the shape of planes. And airlines could employ short, obese staff to check boarding cards at airport gates, because height and weight are irrelevant to job performance in those posts.

    Reply
  • avatar
    December 31, 2014 at 3:05 pm
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    Hi Zoe,

    Love your blog and the message you’re promoting, it’s time to reverse the dietary guidelines that have brainwashed everyone over the last 50 years! I was wondering if you’re speaking anywhere in the UK in the near future, or know of any ketogenic/HFLC speakers who will be in the UK some time soon. Unfortunately, I can’t attend the conference in South Africa next month, as I’m only 16 and have to be at school, but it looks amazing, so many incredible names on the list. When I tell adults or teachers about the benefit of low carb high fat, they think it’s a joke, at least now I can direct them to your blog. Keep up the great work :)

    Regards

    Daniel

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    • avatar
      December 31, 2014 at 3:17 pm
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      Hi Daniel – thanks so much for such a lovely comment. I wish I’d been as wise as you at 16!
      There’s a conference in Edinburgh in Jan (https://www.facebook.com/pages/Weston-A-Price-Foundation-Edinburgh-Chapter/253252574722204) I’m not at this one, but I think Sam Feltham is. There should be loads of videos following the Feb SA conference and then there’s the May (Jimmy Moore) low carb cruise – may be videos from that too. If you follow me on twitter I’ll make sure I post any I hear of
      Keep educating the teachers!
      Very best wishes – Zoe

      Reply
  • avatar
    December 19, 2014 at 4:23 pm
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    Very informative. Your central point about inability rather than opportunity now being protected is one I’ve not read or heard anyone else raise. I’m still puzzled by various issues. Suppose the child minder had an “equal” but definitely unavoidable disability of very small lungs and got out of breath too quickly to play with the children or keep them safe? What is the difference, if any (apart from the “avoidability” issue), to obesity disability? And such a person would fail the police fitness test. As no amount of training can change very small lungs, there seems to be a problem looming here.

    Also, I’m under the impression that “reasonable adjustments” is an important concept; so, for example, certain historic buildings aren’t obliged to provide disabled access, yet the Post Office should put its card machines on flexes so that people with dwarfism can reach them. I guess there are good reasons why changing the designs of planes is not reasonable, but maybe these children should wear shoes with velcro fasteners?(I’m joking)

    Well, I’ve demonstrated why I’m not a lawyer, but I’ve enjoyed very much reading your blog over the past year. Got back into 32″ waist Levis two years ago and still in them. Best wishes for Christmas and the 2015.

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    • avatar
      December 19, 2014 at 4:36 pm
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      Many thanks Jonathan and Happy Christmas to you too!

      I think you just start to touch on some of the many problems – hence the joy that this will mean for lawyers. So many cases will be needed to establish some principles of case law for this one, but it has taken ability and discrimination to new dimensions :-)

      Reply
      • avatar
        December 23, 2014 at 2:34 pm
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        This (below) is interesting. The man says he could do the job. He didn’t want to be classed as disabled – he was claiming discrimination; yet the Court decided he is disabled. I think this may be getting close to the heart of the issue. Two entirely different concepts – disability and discrimination – have been conflated. If these are addressed separately, the fog clears. Someone takes the police test and fails. Were they failed because of their race? That’s discrimination. Otherwise, they failed because of their physical state. They might be “disabled” according to some independent criteria, which may or may not include obesity, or they might just not have the high level of strength and stamina required.

        http://www.telegraph.co.uk/health/dietandfitness/11302442/I-dont-feel-my-weight-is-a-big-problem-says-Dane-in-EU-obesity-ruling.html

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        • avatar
          December 23, 2014 at 4:07 pm
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          Great find! I’m glad someone else has pointed out he needs to be unable to do the job to be protected! You’ve nailed the conundrum as well – they have totally confused discrimination (which should not happen for any reason when someone can do a job) and disability which should not result in discrimination if someone can do the job but inability to do a job should be a universally accepted concept. You may not have the maths skills, the language skills, the height, the steadiness of hand – whatever – if the job genuinely requires an attribute – the pool for consideration should be those with that attribute regardless of irrelevant stuff like gender, age, race, religion etc.

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  • avatar
    December 19, 2014 at 10:24 am
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    Yet another nail in the coffin of my voting for any other party than UKIP.
    I will just have to hold my nose and do it. This institutionalised insanity has to be stopped.

    Reply

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