Worldwide obesity has more than doubled since 1980, according to the World Health Organization. Globally, the WHO estimates that more than one in three adults aged over 18 years were overweight in 2014, and more than one in 10 were obese. The WHO defines obesity as a body mass index of 30 or more, and then categorizes obesity in three classes with the most serious being class III with a BMI of more than 40.
This means that employers across the globe are having to manage the increase in the size of their workforce, and the attendant complications for their employees’ health, not to mention their inability to carry out normal work-related activities.
The question of whether obesity constitutes a disability, and therefore whether obese employees have a right not to be discriminated against, has recently been considered in courts in both the US and in Europe. In both jurisdictions, the conclusion has been that obesity per se cannot be considered a disability, but the approach taken by the courts has been slightly different.
In the US, the Equal Employment Opportunity Commission has argued that obesity should be considered a disability under the Americans with Disabilities Act and the ADA Amendments Act in 2008. The legal definition of a disability is a physical or mental impairment that substantially limits one or more major life activity. In addition, a person may be disabled if they have a history of disability (such as cancer that is in remission); or if he or she is believed to have such an impairment that is neither transitory nor minor. Under the ADA and ADAAA, an employer discriminates against an applicant or employee if he or she treats a person with a disability less favorably than other employees or fails to provide a reasonable accommodation for their disability.
In the case of Morriss v. BNSF Ry. Co., The Eighth Circuit Court of Appeals recently held, that unless the obesity results in a “physical impairment” it will not amount to a disability, even if a person is morbidly obese. A “physical impairment” is a “physiological disorder or condition … affecting one or more major body systems” such as diabetes, heart disease, cancer etc.
Melvin Morriss had applied for a machinist position with BNFS Railway Company in March 2011. He was extended a conditional offer of employment contingent upon a satisfactory medical review. Morriss completed a medical questionnaire indicating he was 5’10” and 270 pounds. BNSF doctors conducted two examinations which revealed Morriss’ weight to be higher, with a BMI of more than 40. Pursuant to its policy, BNSF did not hire any new applicants for safety-sensitive positions that had a BMI of 40 or greater. Consequently, BNSF revoked its conditional offer of employment.
Morriss filed suit alleging disability discrimination under the ADA and ADAAA, claiming that his obesity was a disability, or alternatively that the company regarded his obesity as a disability. Morriss had to show that his obesity was a “physical impairment” and pointed to interpretative EEOC guidelines that exclude physical characteristics, such as weight within the normal range. Thus, an individual’s obesity would only have to be the result of a physiological disorder, if his weight was within the normal range. Because Morris’ weight was outside the normal range, he claimed he did not have to show a physiological disorder to be considered disabled. The court rejected Morriss’ interpretation noting that the more natural reading was that “an individual’s weight is generally a physical characteristic that qualifies as a physical impairment only, if it falls outside the normal range and it occurs as the result of a physiological disorder.”
This case indicates that obesity can be a disability, such as in instances where the obesity arises from a recognized physiological impairment. It also confirms that no federal legal obligations arise unless and until the employer has knowledge of a physiological condition or other medical disorder that arguably causes the employee’s physical circumstances. This is something which an employer should explore with the employee through a good-faith interactive process.
It is important to note however that state law may treat obesity as a disability without the need for an underlying medical condition.
The European Court of Justice gave an opinion in 2014 in a case referred by a Danish court in the case of Kaltoft v Municipality of Billund. This case was brought by Danish childminder Karsten Kaltoft who claimed that his employment with the Municipality of Billund was terminated due to his obesity (he weighed more than 350 pounds) and that this amounted to unlawful discrimination on disability grounds. The Danish courts referred the matter to the ECJ for a decision on whether EU law prohibits discrimination on the grounds of obesity.
The European Employment Equality Framework Directive 2000/78/EC does not contain a definition of disability; however, it does prohibit discrimination on grounds of disability.
The ECJ confirmed that there is no general stand-alone prohibition on discrimination on grounds of obesity, as opposed to race, gender etc., or that obesity per se amounts to a disability under European law. In other words it is not unlawful in itself to dismiss somebody just because he is obese.
It accepted, however, that obesity may amount to a disability within the meaning of the Directive where its physical and medical side-effects materially hinder a person’s ability to carry out his job. It gave the example of an employee who has restricted mobility because of his weight or somebody who suffers from other medical conditions as a result of his weight, which in turn prevents him from carrying out his job or hinders his ability to do so.
The EU Advocate General, giving a preliminary opinion in the case, had argued that only extreme, severe or morbid obesity could create limitations that amount to a disability for discrimination purposes, such as where a person’s BMI is 40 or more. Interestingly, the ECJ did not make reference to a person’s BMI score as a threshold for what might amount to a disability — preferring to focus on the medical or physical side-effects of obesity, and the extent to which these affect an employee’s ability to carry out his job. However, the advocate general noted it is irrelevant whether the obesity is caused by an underlying medical condition or simply the overconsumption of food. The crucial issue is whether the employee is in fact suffering from a long-term impairment.
The case was sent back to the Danish court to consider Kaltoft’s case. Kaltoft had worked for a children’s nursery for 15 years and had been dismissed on grounds of redundancy due to a reduction in the numbers of children attending the nursery. The court established that there was no proof to support a finding that at the time of the dismissal he was suffering from any condition amounting to a disability under Danish discrimination laws. Despite his obesity, Kaltoft had carried out his full-time job continuously for more than 14 years without any discussion between him and Billund Municipality about his ability to do the job, and without any accommodation.
The inconvenience described by Kaltoft, including the restrictions of movement relating to the performance of his job activities, were not considered by the court to be of a nature preventing him from performing his job as a childminder.
The difference between these approaches seems to be that in the US there has to be a physiological disorder as the underlying cause of obesity before it can be classed a disability; or the obesity itself has to result in a medical condition amounting to a disability. Whereas in the EU case, the Advocate General made it clear that the reason behind the obesity was irrelevant; it was the physical effects of obesity that would determine whether a person had a disability capable of protection under the law.