Kaltoft – a step (in the wrong direction?) towards protection from weight discrimination under EU law

Dr Iyiola Solanke

Over the last two to three decades the prevalence of overweight and obese[1] people has become a major public health issue across countries, age-groups, class, race and ethnicity. As long ago as 2003, research estimated that 61% of Americans were overweight, and 20% were obese. In 2006, the OECD ranked Britain’s overweight and obesity rate (62%) as the worst in Europe and the third-worst in the world, behind Mexico (69.5%) and the U.S (67.3%). In 2008, more than 1.4 billion adults were overweight, including over 200 million obese men and nearly 300 obese million women. More than 40 million children under the age of five were overweight in 2011. Children and adults are getting fatter.

The rise in body size is a public health issue because of its cost: medical experts link numerous ailments to excess weight, such as diabetes, angina, osteoarthritis, stroke, gout, gall bladder disease, breast cancer, cancer of the colon and ovarian cancer. Overweight and obese people are said to be more prone to heart disease, stroke, high blood pressure, diabetes, chronic depression and many other life threatening conditions. An overweight child is likely to become an overweight adult. The cost to the public purse could be billions of pounds.

The CJEU has now confirmed that obesity is also a matter for equality law. EU law does not formally prohibit fattism – like other public health issues, this remains within the competence of the member states[2] – but in the first case of its kind, the CJEU decided that discrimination on the grounds of obesity can fall within the disability strand of the Equal Treatment Directive 2000/78. This was stated in answer to questions arising before a Danish court during a case concerning the weight of a childminder.

Kaltoft

Mr Kaltoft was hired by the Municipality of Billund in 1998 on a permanent contract as a childminder. He was obese at the time of his initial employment and, despite periods of weight loss, remained such throughout his 15 years in this post. From March 2010, he appeared to be under informal review, being visited by his boss and asked about his weight. During 2010, when the number of children in Billund fell, he was given fewer children to look after. That same year, he was chosen to be dismissed. When Kaltoft asked why he was the only childminder to be dismissed, he was told it was due to his decreased workload. Kaltoft was convinced that it had something to do with his weight.

His trade union brought an action before the District Court seeking compensation for him, arguing that he had been subjected to weight discrimination. The Danish court stayed proceedings to ask the CJ four questions, of which only the first and fourth were answered: whether it is contrary to EU law (for example Article 6 TEU on fundamental rights) for a public-sector employer to discriminate on grounds of obesity in the labour market; and whether obesity could be deemed to be a disability covered by Directive 2000/78/EC.

The first question was dealt with relatively swiftly: the Fourth Chamber of the Court of Justice did not emulate the boldness of the Grand Chamber in Mangold but citing Chacon Navas and Coleman declared that ‘EU law must be interpreted as not laying down a general principle of non-discrimination on grounds of obesity as such…’[40]. The Fourth Chamber then considered whether obesity is a disability. Its reasoning began from the purpose of Directive 2000/78: to set out a ‘general framework for combating discrimination, as regards employment and occupation, on any of the grounds referred to in that article, which include disability.’ It then noted the meaning of direct discrimination in this Directive and its scope of application – per Article 3(1)(c) it covers all persons in the public and private sectors, and all phases of employment including dismissals. Citing HK Danmark and Glatzel, where the CJ – taking inspiration from the EU ratification of the United Nations Convention on the Rights of Persons with Disabilities – stated that

53…the concept of ‘disability’ must be understood as referring to a limitation which results in particular from long-term 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

It concluded that in order to be compatible with Directive 2000/78, the concept of ‘disability’ a)‘must be understood as referring not only to the impossibility of exercising a professional activity, but also to a hindrance to the exercise of such an activity’ [54] and moreover that b) the concept had to be open-ended in relation to the ‘origin of the disability’ [55] – it could not be dependent upon ‘the extent to which the person may or may not have contributed to the onset of his disability.’ [56] Thus while obesity itself is not a ‘disability’ within the meaning of Directive 2000/78 [58], it decided that obesity could be covered by the concept of ‘disability’ in that Directive where

  1. ‘the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, obesity can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78.
  2. Such would be the case, in particular, if the obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset, in that person, of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity.

It was left for the Danish court to decide whether, despite the fact that he was able to work effectively for 15 years as a childminder, his obesity during his term of employment nonetheless limited Kaltoft in the way envisaged by the EU concept of ‘disability’. He would then have to prove that his dismissal was because of his obesity.

The causes and consequences of corpulence

It is interesting that the Fourth Chamber specifically dismissed the idea of culpability for the disability. There is a general disdain towards those like Kaltoft who are fat, largely because this is seen as a behavioural problem that could be resolved by eating less and exercising more. Behavioural understandings of weight are encouraged by official campaigns which stress healthy eating and lifestyles. Yet this is too simplistic – the current fat epidemic is a complex phenomenon caused by an interaction of environmental, genetic, psychological, physiological, metabolic, socioeconomic, lifestyle, and cultural factors. For example, a malfunctioning thyroid or pituitary gland, sleep deprivation or medication can promote weight gain. More generally, international food supplies now contain more saturated fats, synthetic sugars and cheap sweeteners derived from corn (high fructose corn syrup or HFCS) – this can also contribute to obesity and related illnesses such as diabetes. The global ‘nutrition transition’ has seen a reduction in the intake of fibre, complex carbohydrates, fruits and vegetables and an increase in the ingestion of fat, cholesterol, sugar and other refined carbohydrates. Food is cheaper but researchers argue that the true price of cheap foods is loss of ‘nutritional self-determination’, or the ability to control the amount of non-nutritional substances (fats and sugar) that we ingest. Loss of nutritional control is an element of the ‘obesogenic’ environment in which we live – a world where fat- and sugar-laden foods together with labour saving devices and sedentary work/ leisure activities make it hard to stay thin. When all this is considered, it is clear that we need to abandon the idea that overweight and obesity are a consequence of personal over-indulgence.

Overweight and obese persons are unprotected by anti-discrimination law, even though studies show that weight discrimination is a widespread phenomenon, evident at every phase of the employment cycle. In the labour market, being either slightly or extremely overweight reduces chances of a job. In one research study, almost 70% of senior managers and directors of major companies agreed that fat people lack self-discipline and self-control, energy and drive. In another survey of 2000 human resource personnel, 30 per cent agreed that ‘obesity is a valid medical reason for not employing a person’; 47 per cent thought that obesity impeded employee output; and 11 per cent thought obesity a fair ground for dismissal. Overweight individuals are rated less desirable as subordinates, co-workers, and bosses. Big women are treated worse than big men. At work they are evaluated more negatively than overweight men. Overweight women receive less desirable job assignments than overweight men and earn significantly less; overweight women have less schooling, earn less annually, have 10 per cent higher rates of poverty and are 20 per cent less likely to be married than non-overweight women.

The extension of existing EU disability discrimination law may therefore help the obese to some extent. Being obese can indeed in some cases be a disability rights issue, for example where difficulties are related to weight either directly (joint/ muscle strain or shortness of breath) or indirectly (as a consequence of reduced cardiac output, the risk of stroke or diabetes). Depending on the consequences for everyday mobility, this can then fall under disability legislation – for example, walking can become difficult because of knee strain due to long term excess weight on the joint. This would fall under the definition provided in the UK Equality Act 2010 whereby ‘… a person has a disability … if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities.’ The employer must then make reasonable changes to accommodate their needs. This can mean re-organisation of work duties, adjustment of the workspace (providing a more comfortable chair and desk) or an allowance for business rather than economy class travel.

However, this extension is also problematic: the medical definitions of ‘overweight’ and ‘obesity’ are guidelines only and can vary based on height. As the Kaltoft decision does not give any guidance on when an overweight person becomes obese, judicial decisions may vary from member state to member state. Second, weight is per se not a disability and entrenching protection from obesity in disability law would establish above-average weight as an aberrant departure from a ‘normal’ thin body. This is precisely the stereotype and stigma that courts need to address if fat people are to be protected from fattism.

 Alternative Approaches to Prohibit Weight Discrimination

There are some examples of how law can be used to prohibit weight discrimination should the EU legislature choose to take this route. The Elliott-Larsen Civil Rights Act[3] in Michigan, USA bans discrimination in employment based on weight – it dealt with nearly 200 weight discrimination complaints in its first ten years. Some sub-state authorities in California have also enacted local laws barring weight discrimination:, such as Santa Cruz[4] and San Francisco.[5] Jennifer Portnick successfully used the latter prohibition to challenge a decision by fitness organisation Jazzercise Inc. when it refused to provide her with the training necessary to open a franchise. Portnick, 5’8’’ tall and weighing 240 pounds, had been doing high impact aerobics for 15 years. Her impressive stamina resulted in an invitation to audition to be a certified Jazzercise instructor. However, the management focused on her weight rather than her fitness and encouraged her to trim down, wanting her to look ‘fit’, ie. thin. Portnick challenged the assumption that fitness equated to size. The case was settled when Jazzercise Inc agreed to remove the need to look ‘fit’ from company policy. Finally, a Washington, DC statute also prohibits discrimination in employment based upon weight.[6]

 Alternatively, the EU legislator could adopt the broader definition of disability provided in the Americans with Disabilities Act (ADA). Under the ADA, a disability is defined as ‘(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.’[7] Section C has proved crucial to claims concerning weight discrimination. As it includes presumptions of disability – an omission in the UK Equality Act 2010 – many persons who have been refused employment or lost employment on account of their weight have successfully sued using this sub-section. For example, overweight job applicant Catherine McDermott used it when Xerox refused to hire her as a business systems consultant – the Director of Health Services advised that while her weight would not impact upon her job performance, it would endanger the financial health of the company due to higher absenteeism and recourse to benefits, medical care plans and life insurance.[8] McDermott successfully challenged this unproven assumption.

 Such ‘common sense’ assumptions can also be challenged under Irish equality law. Section 6(1) of the Irish Employment Equality Act (EEA) covers discrimination on the grounds of disability, including actual and potential difficulties. In particular, section 6(2)(e) defines disability as ‘a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.’ It was used in a case where a Care Attendant was denied a post as Staff Nurse with the Health Service Executive (HSE) – the HSE presumed her obesity was a disability.[9]

The above examples show that there are different ways to prohibit discrimination on the basis of weight. As discrimination against the overweight and obese is likely to be a growing (no pun intended!) problem, the sooner a way is found to protect these persons from discrimination, the better.


[1] Obesity is measured using the Body Mass Index (BMI), which has 4 categories – underweight (below 18.5), normal (18.5 – 24.9), overweight (25-29.9), obese (30 and over). For more obesity facts and figures see http://easo.org/obesity-facts-figures .

[2]The Commission’s has funded some public health projects, eg, the Ensemble Prévenons l’Obésité des Enfants (“let’s work together to prevent childhood obesity”), a nutrition education programme in France.

[3] Elliot Larsen Civil Rights Act, Act 453 of 1976, Sec. 209.

[4]Santa Cruz Municipal Code, Chapter 9.83. http://www.codepublishing.com/CA/SantaCruz/html/SantaCruz09/SantaCruz0983.html

[5]San Francisco Municipal/ Police Code Article 33. Available at http://www.municode.com/content/4201/14140/HTML/index.html.

[6] District of Columbia Code Subchapter II, S. 1-2501 (1987 & Supp. 1993).

[7] (42 U.S.C. § 12102(2)

[8] McDermott v Xerox Corp., 102 A.D.2d 543 (1984), 544.

[9] Health Service Employee v The Health Service Executive, December E2006-013.

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