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Should Obesity be Protected as a Disability?

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About The Author

Sol Gelsomino (Guest Contributor)

Sol is a law graduate from Grey College, Durham University and a Future Trainee Solicitor at Morgan Lewis and Bockius LLP. She is currently undertaking the LPC at BPP Holborn. Originally from Argentina, Sol is interested in employment and company law. Outside the law, Sol is a former cheerleader and an avid fan of Graham Norton.

I considered obesity a disease. It can destroy you from within. It almost destroyed me, and I do not want that to happen to anybody.

Arjun Kapoor

Talk of an ‘obesity epidemic’ sweeping across Western Europe may sometimes appear hyperbolic. Yet, with the OECD reporting that 26.9% of the UK’s adult population are obese, it is clear that several elements of society – from the health sector to the food industry – need to adapt to what is an increasingly acute problem.

The law is no different: in light of a number of studies showing that overweight individuals face widespread stigmatization in the workplace, clarity is needed as to position of overweight individuals within the ambit of disability discrimination law. This poses a novel challenge to discrimination law – which Anna Lawson has described as tied to ‘medical and welfarist shackles’ – because the overweight are arguably discriminated against on the basis of the social stigma attached to their weight as opposed to the long term, substantial, adverse effect that their bodies have upon their day-to-day activities.

In light of this, this article will seek to explore the options for legal reform of protection for overweight individuals to ensure this increasingly prominent group in society are given sufficient protection against discrimination under English law.

The Influence of Stigmatisation

Extending legal protection to overweight individuals is a controversial issue. Arguments against such developments tend to lie in the misconception that being overweight is a preventable affliction, one which employers should be permitted to penalize. This misconception stems from pervasive social beliefs that overweight individuals are lazy and undisciplined. Such stereotypes originate from a wide variety of sources; though the media might be considered the principal culprit, regrettably but perhaps inevitably, such stereotypes also manifest themselves within public policy and public health plans. Abigail Saguy and Kevin Riley consider these negative social stereotypes to be at the heart of the problem, significantly hindering the extension of disability protection.

It is therefore clear that overweight individuals are subject to what Cheryl Ritenbaugh terms a ‘culture- bound syndrome’, in which healthy people are erroneously perceived to be unwell. Indeed, though some medical practitioners may argue that being designated as ‘overweight’ by the BMI Index indicates a level of unhealthiness, it must not be overlooked that, primarily, overweight individuals are subject to social barriers as opposed to suffering from a functional deficit.

The Position under English Law

Meeting English Law’s Definition of Disability

Victims of workplace discrimination currently receive protection under the provisions of the Equality Act 2010 where they suffer negative or unfair treatment because of, or due to, a ‘protected characteristic’ that they possess. Section 6 of the EqA 2010 confirms that possessing a disability constitutes a protected characteristic. It holds that:

A person (P) has a disability if:

  1. P has a physical or mental impairment, and
  2. the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

This definition functions as a gatekeeper, granting access to protection to those who meet the criteria. It is thus concerning that many applicants fall at the first hurdle: as Anna Lawson explains, this is indicative of a trend which sees judicial and other attention [distracted] from the behaviour of the alleged discriminator and focusing it instead on the functional limitations of the victim. Overweight individuals are a prime example of this, as they invariably struggle to meet this strict functional deficit requirement.

This focus on identifying an impairment anchors itself firmly in the medical or individual model of disability, whereby physical impairments can be established without reference to causation. This might explain why obesity has not yet been classified as a protected characteristic in itself. After all, an  individual with weight issues that result in a physical impairment that has ‘a substantial adverse effect’ upon their ‘ability to carry out normal day-to-day activities’ could fall under the definition of a disability in Section 6 of the EqA 2010, regardless of whether the cause of such impairment is obesity.

Indeed, because of  the likelihood that obesity will invariably lead to associated physical and mental impairments, Mark Butler considers the question of whether obesity is a disability or not irrelevant. In his view, the law can indirectly protect obese individuals without needing to protect obesity in itself. This argument may have some purchase, on account of the fact that cases examining the need to promote the rights of obese individuals have rarely been heard by English courts. On the other hand, those visually overweight but not obese are unlikely to benefit from such side effects.

The Walker v Sita Information Decision

In Walker v SITA Information Networking Computing Ltd [2013], the Employment Appeals Tribunal clarified the position of overweight individuals in regards to disability discrimination. In this case, the claimant (W), suffered from a complicated range of symptoms described as ‘functional overlay’ – which medical opinion viewed as being compounded by W’s obesity – that affected his daily living.

Langstaff P employed an effects-based approach when examining whether W’s impairments satisfied the definition of disability, thus taking no account of obesity as the primary cause of the impairment. Crucially, after confirming W did fall under the definition of disabled in Section 6 of the EqA 2010, Langstaff P commented that:

[T]hough I do not accept that obesity renders a person disabled of itself, it may make it more likely that someone is disabled.

The current legal position can thus be succinctly stated: obesity in itself cannot satisfy the definition of disability, but can offer evidence to allow a court to more readily to conclude that the individual before them does indeed suffer from an impairment. This seems artificial: obesity-related impairments are inherently linked to the obesity, obesity cannot satisfy the definition in itself. As a result, obese individuals are offered only indirect protection on the basis of the extent to which their weight is causing them health issues.

This, in effect, creates an ‘obesity lottery’, whereby an individual only gets protection if they are ‘fortunate’ enough to suffer from be focus on ancillary conditions that are invariably suffered by severely obese individuals’. Thus, there is a lacuna in the law which leaves overweight individuals with no related serious health concerns unprotected, despite the fact that they arguably do suffer from an impairment, but one that originates from social prejudicial views of the ideal body image rather than any medical condition.

The Position under EU Law

Meeting EU Law’s Definition of Disability

In this area, English statutes and case law must be read alongside EU and international law. The EU provides disabled individuals with discrimination protection under the Council Directive 2000/78/EC (the ‘Framework Directive’) which seeks to establish a general framework for equal treatment in employment and occupation. The EU has also adopted the provisions of the United Nations Convention on the Rights of Persons with Disabilities (the Convention), though the extent to which this binds Member States directly was doubted by the European Court of Justice (ECJ) in Z v A Government Department [2014].

At first sight, the Convention appears to represent a paradigm shift in the concept of disability towards a social model. As the Clause 5 of the Preamble to the Convention explains, it explicitly recognises that:

[D]isability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.

A social model differs from a medical model by acknowledging that, where a work environment fails to provide for equal treatment for those who have impairments, it is the cause of discrimination. Thus, under a social model, overweight individuals will have their impairment recognised as the stigma originates in the environment within which they work.

The definition of a disability under EU law has been adapted over time. In Chacón Navas v Eurest Colectividades [2006], the ECJ’s definition aligned closely with the definition under English law, considering it:

[A] limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.

However, in HK Danmark v Dansk Arbejdsgiverforening [2013], the ECJ took a wider approach which reflects a social model, such that disability was defined as:

[A] limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.

This decision appears a laudable one. The addition of the concept of ‘various barriers’ widens the scope of the definition, while the clarification that disability can refer to ‘a hindrance to the exercise of a professional activity’ as opposed to the ‘impossibility of exercising such an activity’ is promising for overweight individuals, who are typically fit to work. Ultimately, EU law’s apparent incorporation of a social model offers more promise to overweight individuals due to its inclusion of attitudinal barriers in its considerations.

The Kaltoft Decision

Nonetheless, the ECJ’s decision in Kaltoft v Municipality of Billund [2014], particularly when read alongside the Opinion of AG Jääskinen, showed that EU law was not prepared to take that important step to recognise obesity as a self-standing ground of discrimination. Indeed, the result of this decision casts doubt on the extent to which EU law can be viewed to have actually adopted a social model.

In this case, the claimant (K) had worked as a childminder for 15 years before his dismissal. Though K’s employer argued the dismissal resulted from a decline in children requiring his services, K believed that he had been unfairly discriminated against due to his weight.

The ECJ had been tasked by the Danish courts with answering two questions. Firstly, it was asked to consider whether there is a general prohibition in EU law on all forms of discrimination that includes obesity. Both the ECJ and AG Jääskinen answered in the negative: it was held that the exhaustive list of discrimination grounds in the various EU instruments and Treaties could not be extended by analogy by the courts. It was thus clear that if K was to succeed, he would need the ECJ to answer the second question which the Danish courts had referred in the affirmative: does obesity meet the definition of a disability under EU law?

On this issue, AG Jääskinen suggested that ‘case law, like the pertinent EU legislation, has adopted, following the approach of the Convention, a social and not a (purely) medical model of disability’. Yet, his conclusion does not accord with this: instead, AG Jääskinen appeared to embrace the medical model of disability that had underpinned the ECJ’s decision in Chacón Navas v Eurest Colectividades [2006]. This was clear from his discussions as to what BMI figure would be sufficiently severe to satisfy the definition of disability. Indeed, as Gauthier de Beco has observed, AG Jääskinen’s reliance on a medical approach but insistence on the use for a social approach ‘created a double condition to qualify as disabled’.

The ECJ took a similar approach to AG Jääskinen. It emphasized the need for the obesity to hinder the full and effective participation of some persons in professional life on a long-term basis to fall within the EU concept of ‘disability discrimination’. For K – who had no evidence that that his weight had hindered in his participation of professional life – this was fatal to his case. The only redeeming feature of the ECJ’s decision was that it was slightly broader in its approach than AG Jääskinen who opined that ‘probably only’ morbid obesity would receive protection. However, the CJEU’s approach seems to encompass any type of obesity, provided the disability definition is met.

The ECJ’s refusal of the social model means that the court is failing to recognise that overweight individuals who are faced only with stigmatization obstacles in society but not physical limitations in their working life would not be regarded as disabled. With a strong focus on impairment, and thus limitations upon activities, the ECJ’s approach means that EU law will never be able to truly encapsulate the reality of the issue: that not all who are overweight are limited in their professional life because of the physical results of their weight, but because of the reactions of their peers and superiors.

In this respect, the Kaltoft v Municipality of Billund [2014] was a backwards step from the promising decision in HK Danmark v Dansk Arbejdsgiverforening [2013]. It leaves the position in EU law almost identical to that in English law. Both require individuals to be severely obese in order to satisfy the disability definition. It is irrelevant to the end result that the UK focuses on the consequential effect of obesity whilst the EU analyses the obesity itself, overweight individuals are no more protected.

Moving Forward – Adopting the Social Model?

It is clear that any reform to the law must be predicated on a recognition that obesity discrimination often arises from erroneous perceptions that obese people choose to be fat, have little self-control or could reduce their weight if only they tried. This is where the medical model falls down, and the social model displays its merits.

It is important to distinguish the relevance of adopting a social model over a medical model for overweight individuals. A medical model approach requires evidence of an impairment of normal human functioning that is not always a necessary consequence of obesity. Only the adoption of a social model recognises that the true reason for discrimination is often stigma related and can only be resolved with an analysis of the larger social context.

The social model is clearly not alien to UK law: Schedule 1, Paragraph 3 of the EqA 2010 opens the door for its use when it offers protection against discrimination to those persons who suffer from:

[A]n impairment which consists of a severe disfigurement is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities.

In this instance, by making the prominence or visibility of the impairment a key factor in determining whether the gateway test of ‘functional deficit’ is met’, a social model has been adopted. The disability is, in this way, linked to a stereotypical social distaste to disfigured persons. This emphasis on appearance as opposed to impairment is a clear departing from the pure medical model: as the Northern Ireland Court of Appeal confirmed in Cosgrove v Northern Ireland Ambulance Service [2006], individuals protected under severe disfigurement ‘would not otherwise satisfy the relevant definition of disability’.

Ultimately, if the UK can depart from the medical model regarding severe disfigurements, there is no reason to suggest the same cannot be done for severely obese individuals. 

Conclusion

Though Mark Butler has raised concerns that allowing obesity to fall under the umbrella of a disability has the potential to impose ‘extensive and costly duty’ on employers, it must not be overlooked that arbitrary discrimination because of weight is a direct affront to basic human dignity. Furthermore, the extent to which employers will incur costs is highly questionable – after all, the barriers facing overweight individuals who do not suffer from physical or mental impairments are social ones that would not require employers to make reasonable adjustments.

Indeed, it is clear that the current position in the UK leaves a gap in the law which is remediable only by legislative reform: in light of the clear judicial  reluctance to offer overweight individuals protection, this is most realistic avenue of redress lies. An expansion of the current framework is needed, whereby the social model is preferred.

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Tagged: Discrimination, Employment Law, Equality, European Union, Justice, Medical Law & Ethics

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