Obese means disabled?

Magdalena Styrnik

It is a common knowledge that being obese is not just the issue of  image, but above all it’s the issue of health. Obesity may reduce our comfort of life and make our existence in modern society much more difficult. As it turned out recently, under particular conditions obesity can be considered as disability and as such can not be a reason of discrimination while hiring people.

Obesity in numbers

Source: hrreview.co.uk

Source: hrreview.co.uk

In 2008 WHO estimated that in its Europe Region over 50% of both men and women were overweight, and roughly 23% of women and 20% of men were obese. The latest estimates in EU countries show that obesity affects 10-30% of adults. The fact that in 2011 more than 40 million children under age of five were overweight is even more alarming. Worldwide obesity has nearly doubled since 1980. Overweight and obesity are often measured using the BMI (Body Mass Index) scale. A BMI greater than or equal to 30 is obesity.

Kaltoft case

The way how landmark decision started was when 50 years old childminder from Denmark,  Karsten Kaltoft (weight about 160kg/ 25 stone) brought a discrimination case against his employers who dismissed him in 2010 after 15 years of working.

Source: dailymail.co.uk

Source: dailymail.co.uk

Local council, which Kaltoft was working for, claimed that his weight made him unable to perform basic duties and  he even required help to tie a children’s shoelaces. The other reason, by which the authority tried to justify its decision was a fall in the number of children, which meant that Kaltoft’s job was no more needed. The claimant said that he was already overweight when he got the job and for 15 years he was told he did a good job. His lawyers  dismissed the “shoelaces’ story” and argued that Kaltoft weight was the reason of his dismissal which amounted to unfair discrimination.

Denmark court decided to ask the ECJ to explain EU law concerning the grounds of discrimination (especially Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16)). As subsequent ECJ’ s rule pointed out, obesity can be one of them along with religion, age or sexual orientation, however only under certain circumstances.

The ECJ determined that obesity can fall within the concept of disability if it “hinders the full and effective participation of that person in professional life on an equal basis with other workers.” Further, judges explained that “ such would be a case, in particular, if the obesity of the worker hindered that participation on account of reduced mobility or the onset of medical conditions preventing that person from carrying out work or causing discomfort when exercising professional activity”. What is more, important point of this ruling is that the origin of the disability is irrelevant even if overeating is a cause for someone’s obesity.

Denmark court is now obligated to assess Kaltoft’s weight to fix if his case should be considered as a disability.

EU highest court ruling and its influence on employers and business

As ECJ’s judgment  is binding in EU countries it will surely affect European job market. According to C. Coleman (BBC) “ it’s a powerful statement that an obese worker whose weight hinders their performance at work is entitled to disability protection”.

Source: express.co.uk

Source: express.co.uk

However, there are much wider and serious consequences of such a rule. The obesity of a person now should be taken into consideration not only during recruitment process, but also during performing the job. The employers have to make much more effort than before to avoid discrimination suits. This may include wider seats, making access to the office easier and any other appropriate support for obese employees. It seems obvious that employers should ensure that their policies are in accordance with new rule.  They may be required to make reasonable adjustments for employees which medical problems are caused by obesity.  New solutions and higher costs may be unavoidable.

Someone may say that such a protection of obese employees will encourage them to stay obese even if they became unable to work as effectively as before. That seems to be another task for employers. They should consider what will cost them more- making adjustments or encouraging employees to stay fit by, for example, paying for gym or pool admission card.

The obesity itself is a very sensitive matter. As Kaltoft said he didn’t consider himself disabled.  Probably, so does a vast majority of obese people. It’ s important to remember that each situation is different and common sense will play crucial part in each case.

I believe that such a rule was not necessary to make a society aware that obesity is no reason for discrimination in any field of life, regardless the cause of being obese.  The rule itself will certainly affect the job market in EU, however it has another priceless value. The decision of EU highest court proves that overweight and obesity are  a common problem of our times. It is now our task to consider how we can prevent the situation when bad habits make our society a disabled society.

Reklamy

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