This Is a Draft of an Article That Was Subsequently Published in the European Journal

1 This is a draft of an article that was subsequently published in the European Journal of Risk Regulation 2 [2015] issue I

4 On Obesity as a Disability

5 Katharina Ó Cathaoir1

6 Case C-354/13, Fag og Arbejde (FOA) v Kommunernes Landsforening (KL) [2014] nyr

7 There is no general principle under European Union law prohibiting discrimination on the basis of obesity 8 in regard to employment and occupation. Obesity alone is not a disability but can constitute a disability 9 where it is accompanied by a limitation resulting from long term physical, mental or psychological 10 impairments which in interaction with various barriers may hinder the full and effective participation of 11 the individual in professional life on an equal basis with other workers (official headnote).

12 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment 13 in employment and occupation, OJ L - 303, of 02.12.2000, pp. 16 – 22.

14 Introduction

15 Obesity is as a major health concern worldwide.2 It is a contributor to non-communicable diseases such as 16 cardiovascular diseases, diabetes, musculoskeletal disorders and some cancers (endometrial, breast, and 17 colon).3 Over the last 20 years, adult and childhood obesity rates have doubled to the extent that in the 18 European Union, an estimated 53% - or 200 million - individuals are overweight or obese. 4 Obesity not only 19 has impact on individual health; it is thought to absorb 2-8% of the health care budgets of European states. 5 20 Furthermore, obesity may contribute to indirect health costs such as absence from work and loss of 21 productivity.6

22 The most widely used measurement of overweight is body mass index (BMI) which is mass (kg) divided by 23 height (m2). A person with a BMI of over 25 is classified as overweight; whereas a BMI of 30+ qualifies as 24 obesity. After BMI 30, obesity is divided into different strains of severity (class I, II and III). However, BMI is 25 a relatively crude measurement which does not take body fat composition into account. 7

1 1 Faculty of Law, University of Copenhagen, [email protected].

2 2 C. Perez Rodrigo, Current mapping of obesity, 28 Suppl 5 NUTR HOSP (2013).

3 3 World Health Organisation, Obesity and overweight Fact Sheet No 311, World Health Organisation,(August 2014), 4 available at http://www.who.int/mediacentre/factsheets/fs311/en/.

5 4 OECD/EUROPEAN UNION, HEALTH AT A GLANCE: EUROPE 2014 (OECD Publishing.).

6 5 European Commission, Public Health (European Commission, 2013), p. 13.

7 6 Falk Müller-Riemenschneider, et al., Health-economic burden of obesity in Europe, 23 EUROPEAN JOURNAL OF 8 EPIDEMIOLOGY (2008).

9 7 WHO, Global Database on Body Mass Index, http://apps.who.int/bmi/index.jsp?introPage=intro_3.html. 26 Besides its physical impact, obesity is linked to psychosocial disorders. 8 Stigmatisation of persons with 27 obese is well documented in educational settings, health care facilities and the work place, as well as 28 hostile attitudes in the media and social settings. 9 Stigma appears to relate to the perception that persons 29 with obesity are responsible for their condition.10

30 Studies from the United States show that stigma can lead to discrimination in the hiring process, with 31 negative characteristics such as laziness or poor hygiene falsely attributed to persons with obesity. 11 32 Although U.S. federal law does not protect persons with obesity from discrimination, in Michigan, obesity is 33 a protected ground.12 Furthermore, six U.S. cities, including San Francisco13 and District of Colombia,14 have 34 outlawed weight based discrimination. France is the only European Union Member State that specifically 35 protects individuals from discrimination based on physical appearance.15 As a result, courts on both sides of 36 the Atlantic are increasingly asked to consider obesity as a disability.

37 The Directive

38 European Union employment discrimination law began with the rationale of pursuing equality between 39 men and women in employment. The Employment Equality Directive (2000/78/EC) expanded the grounds 40 of discrimination to religion or belief, disability, age or sexual orientation. The objective of the Directive is 41 to create a level playing field in relation to equality in employment and occupation at EU level.

42 The Directive prohibits direct and indirect discrimination unless justified by a legitimate aim through 43 appropriate and necessary means. A difference in treatment may also be justified where, due to the nature 44 of the particular occupational activities concerned, or the context in which they are carried out, the 45 characteristic constitutes a genuine and determining occupational requirement, provided that the objective 46 is legitimate and the requirement is proportionate. The Directive applies to conditions for access to 47 employment, access to training, employment and working conditions, and membership to employers and 48 workers organisations.

49 Under Article 5 of the Directive, employers have an obligation to provide reasonable accommodation to 50 workers with a disability. This requires that ‘appropriate measures’ be taken (specific to the individual case) 51 to enable the person to have access to employment. This is subject to the requirement that such measures 52 should not impose a ‘disproportionate burden’ on the employer. Thus, the duty to accommodate is not 53 absolute.

54 Facts of the Case

10 8 V. Vaidya, Psychosocial aspects of obesity, 27 ADV PSYCHOSOM MED (2006).

11 9 Rebecca M. Puhl & Chelsea A. Heuer, The Stigma of Obesity: A Review and Update, 17 OBESITY (2009).

12 10 T. B. Lund, et al., Attitudes to publicly funded obesity treatment and prevention, 19 OBESITY (SILVER SPRING) (2011).

13 11 Puhl & Heuer, OBESITY, (2009).

14 12 Elliot Larsen Civil Rights Act, Act 453 of 1976, Sec. 209.

15 13 San Fran. Admin. Code Chapters 12A, 12B, & 12C; San Fran. Municipal/Police Code Art. 33.

16 14 Human Rights Law Subchapter II, Sec. 1-2512.

17 15 Law no 2001-1066 of 16 November 2001. 55 Karsten Kaltoft worked as a child minder for the Municipality of Billund, Denmark. For the entirety of his 56 employment, Kaltoft was obese (i.e. a BMI of over 30). He received financial support from the Municipality 57 to lose weight but was unsuccessful in doing so. After approximately 15 years of service, Kaltoft was 58 dismissed in November 2010. According to the Municipality, the reason was a fall in the number of children 59 using the child minding service. On the other hand, Kaltoft petitioned the District Court of Kolding for 60 compensation, arguing that he had been dismissed, and as such discriminated against, due to his obesity. 61 The Municipality denies that Kaltoft’s weight was a factor in his dismissal.

62 The Danish Court stayed the proceedings and referred the following questions to the Court of Justice of the 63 European Union (CJEU) for a preliminary ruling under Article 267 TFEU:

64 1. Is it contrary to EU law, as expressed, for example, in Article 6 TEU concerning fundamental rights, 65 generally or particularly for a public-sector employer to discriminate on grounds of obesity in the 66 labour market?

67 2. If there is an EU prohibition of discrimination on grounds of obesity, is it directly applicable as between 68 a Danish citizen and his employer, a public authority?

69 3. Should the Court find that there is a prohibition under EU law of discrimination on grounds of obesity in 70 the labour market generally or in particular for public-sector employers, is the assessment as to 71 whether action has been taken contrary to a potential prohibition of discrimination on grounds of 72 obesity in that case to be conducted with a shared burden of proof, with the result that the actual 73 implementation of the prohibition in cases where proof of such discrimination has been made out 74 requires that the burden of proof be placed on the respondent/defendant employer …?

75 4. Can obesity be deemed to be a disability covered by the protection provided for in Council Directive 76 2000/78/EC … and, if so, which criteria will be decisive for the assessment as to whether a person’s 77 obesity means specifically that that person is protected by the prohibition of discrimination [on] 78 grounds of disability as laid down in that directive?’

79 Judgment

80 First question: Does EU law generally lay down a principle of non-discrimination on grounds of obesity in 81 employment and occupation?

82 The CJEU reiterated that the general principle of non-discrimination is part of the general principles of 83 Union law. This principle is binding on Member States where the national situation in the main proceedings 84 falls within the scope of EU law.16

85 The CJEU noted that no provisions of the TEU or TFEU specifically prohibit discrimination on grounds of 86 obesity, including neither Article 10 TFEU nor Article 19 TFEU. Following its case law, Article 19 TFEU cannot 87 be a basis for measures of the Council of the European Union to combat discrimination on the ground of 88 obesity as it does not refer thereto and only contains rules on the competencies of the EU. Obesity is also 89 not mentioned in secondary legislation of the EU, nor the Directive. The scope of the Directive should not 90 be extended by analogy and thus, obesity cannot be regarded as falling thereunder. Thus, as dismissal due 91 to obesity does not fall within the competence of the EU, the Charter of Fundamental Rights of the EU is 92 inapplicable.

18 16 Chacon Navas, C-13/05, EU:C:2006:456, paragraph 56. 93 For these reasons, the CJEU concluded that Union law does not lay down a general principle of non- 94 discrimination on grounds of obesity in relation to employment and occupation. As this first question was 95 answered in the negative, the Court did not address the second and third question.

96 Fourth question: Can obesity constitute a disability under the Directive and, if so, what are the criteria 97 which decide whether a worker with obesity may avail of the protection of the Directive against 98 disability based discrimination?

99 Admissibility

100 The Danish Government disputed the admissibility of the claim as Kaltoft was not unable to carry out his 101 functions while working nor was he considered to be suffering from a disability. Furthermore, it argued 102 that, in light of HK Danmark,17 the Danish court could already give a ruling on the definition of disability 103 under the Directive.

104 The CJEU held that it was for the referring court to determine the need to refer. It is in principle bound to 105 give a ruling and this may be rebutted only in exceptional cases, such as that it is obvious that the 106 interpretation of Union law sought bears no relation to the actual facts of the case or its purpose, or where 107 the CJEU does not have the factual or legal material needed to give a useful answer. The CJEU declared the 108 referral admissible as it was not obvious that the interpretation sought was unnecessary in order to resolve 109 the case. Furthermore, the national court is not prohibited from referring a question, the answer to which 110 leaves no scope for reasonable doubt.

111 Decision

112 The Court defined disability in the context of the United Nations Convention on the Rights of Persons with 113 Disabilities as “a limitation which results in particular from long-term physical, mental or psychological 114 impairments which in interaction with various barriers may hinder the full and effective participation of the 115 person concerned in professional life on an equal basis with other workers”.18 It clarified that disability does 116 not only mean the impossibility of exercising a professional activity, but also a “hindrance” in doing so. Any 117 other interpretation would be incompatible with the objective of the Directive. Furthermore, the origin of 118 the disability should not be used to define its scope. Thus, the Court firmly stated that the extent to which a 119 person may or may not have contributed to his disability is irrelevant.

120 The determination and assessment of appropriate accommodation comes after the definition of disability. 121 Thus, the fact that such accommodation measures did not take place does not mean that Kaltoft could not 122 be considered disabled under the Directive.

123 The CJEU stated clearly that obesity in itself is not a disability under the Directive as by its nature it does not 124 necessarily cause a limitation. However, obesity can be a disability if it ‘entails a limitation which results in 125 particular from physical, mental or psychological impairments that in interaction with various barriers may 126 hinder the full and effective participation of that person in professional life on an equal basis with other 127 workers, and the limitation is a long-term one’. Obesity that hindered full and effective participation in 128 professional life on an equal basis with other workers due to, for example, reduced mobility or the onset of

19 17 C-335/11 and C-337/11, EU:C:2013:222.

20 18 HK Danmark, EU:C:2013:222, paragraphs 37 to 39, Z, C-363/12, EU:C:2014:159, paragraph 76, and 21 Glatze, C-356/12, EU:C:2014:350, paragraph 45. 129 medical conditions preventing the individual from working or causing discomfort while working, could 130 amount to a disability.

131 It is for the Danish Court to determine whether Kaltoft’s obesity entailed a limitation that hindered his full 132 and effective participation in professional life on an equal basis to others. Should Kaltoft establish that this 133 is the case, the burden of proof is on the Municipality to prove that there was no breach of the principle of 134 equal treatment. The Danish court is expected to reach a decision toward the end of 2015.

135 Comment

136 The judgment is a common sense interpretation of the Directive that does not present surprises to those 137 familiar with HK Danmark. While it does not appear to fundamentally alter the state of the art, it may lead 138 to an increased awareness on the part of employees and employers of their respective rights and duties.

139 In his Opinion of 18 July 2014, Advocate General (AG) Jääskinen came to the same conclusion as the Court, 140 that obesity simpliciter, is not in itself a disability. However, the AG suggested that obesity of a certain 141 severity, i.e. class III obesity, may result in limitations, such as mobility, endurance and mood, amounting to 142 a disability. The CJEU declined to adopt a definitive test which could assume persons of a certain BMI and 143 over have a disability. Instead, it focused on the effect of the individual’s obesity. While the BMI approach 144 could lower the evidential burden, it obscures the key determinant of functionality. Classifying everyone 145 with obesity as having a disability implies a lack of functionality that many may not experience. 146 Furthermore, employers could feel obliged to monitor employee BMI in order to fulfil their duties.

147 The judgment has sparked debate between those who see obesity as a personal choice that employers 148 should be allowed to penalise, and those who believe persons with obesity should be aided in participating 149 in work life to the fullest extent possible. While some may feel that the ruling encourages unhealthy habits, 150 studies suggest that stigmatisation does not help individuals to lose weight. 19 The cause of obesity is widely 151 regarded as a simple equation - an energy imbalance resulting from too little physical activity and the 152 consumption of an excess of calories. However, this simplistic explanation is not borne out by evidence. 153 There are those that dispute this model and call for a wider consideration of the factors that contribute to 154 obesity, such as stress, sleep and the built environment.20

155 The CJEU, like the AG, stated that the cause of the disability is not relevant. This seems apt given that the 156 origin of a disability is not taken into account in other circumstances, such as where a person develops a 157 disability as a result of a car crash in which he was negligent. Employers should avoid value judgments 158 based on the perceived origin of a disability. Likewise, the immutability of the condition was not a factor in 159 the Court’s decision. Although clinically meaningful weight loss is possible, research shows that it is not 160 maintained long-term in the majority of instances.21

161 As obesity in itself is not a protected ground, the employer’s duty only arises where the employee’s obesity 162 is coupled with a limitation that may hinder his/her full and effective participation in the workplace on an

22 19 Carissa B. Wott & Robert A. Carels, Overt Weight Stigma, Psychological Distress and Weight Loss Treatment 23 Outcomes, 15 JOURNAL OF HEALTH PSYCHOLOGY (2010). Lenny R. Vartanian & Jacqueline G. Shaprow, Effects of Weight 24 Stigma on Exercise Motivation and Behavior: A Preliminary Investigation among College-aged Females, 13 see id. at 25 (2008).

26 20 Jean-Philippe Chaput, et al., Widespread misconceptions about obesity, 60 CANADIAN FAMILY PHYSICIAN (2014).

27 21 S U DOMBROWSKI, et al., LONG TERM MAINTENANCE OF WEIGHT LOSS WITH NON-SURGICAL INTERVENTIONS IN OBESE ADULTS: SYSTEMATIC 28 REVIEW AND META-ANALYSES OF RANDOMISED CONTROLLED TRIALS § 348 (2014). 163 equal basis as others. The Court gave some indication of the potential barriers that could accompany 164 obesity. Data from the U.S. claims that persons with obesity are more likely to experience functional 165 difficulties.22 Research from the United Kingdom suggests an increased prevalence of muscoskeletal 166 problems, back pain, diabetes and mental health disorders in persons with obesity. 23 It is unclear whether 167 this link is causal or resulting, as persons with pre-existing disabilities exhibit higher rates of obesity. 24

168 Reasonable accommodation is assessed on a case by case basis and seeks to accommodate individual 169 needs. Examples could include providing more suitable chairs, disabled parking spaces or reassigning 170 physically demanding tasks. Although costs of reasonable accommodation vary based on the individual 171 situation, they are generally low.25 Furthermore, the employer’s duty is not absolute where the 172 accommodation would place an unreasonable burden.

173 Conclusion

174 The judgment raises interesting questions on the extent to which employers have a responsibility for 175 employee health. It may cause employers to reconsider the benefits of bolstering a healthful workplace 176 through access to physical activity and nutritious food. There is some evidence that work based 177 interventions can have an impact on of weight loss.26 Furthermore, there is a role for the state in promoting 178 healthy workplaces, such as bike to work schemes. On the other hand, employers must respect employee 179 privacy and health decisions. Moralising weight or appearance could lead to increased stigmatisation and 180 discrimination.27

181 Presently, with the majority of EU Member States not protecting individuals from employment 182 discrimination on the basis of appearance or weight, the future of obesity discrimination actions seems to 183 lie in disability claims. An under-explored avenue is discrimination on the basis of a perceived disability. 184 This is a well-established cause of action in the U.S. and Australia that arises where an individual is treated 185 less favourably due to his/ her employer’s incorrect assumption that he/ she has a disability. In Attridge 186 Law v Coleman, the CJEU stated that ‘EU protection is not limited only to people who are disabled’. Thus, 187 the fact applicant herself was not disabled, but her son, did not mean she was devoid of protection. 28 188 Therefore, although the question has not been directly addressed by the CJEU, it would seem that 189 perceived disability is covered by Union law.29

29 22 Functional difficulties meant walking one-fourth mile, walking up 10 steps without resting, stooping / crouching / 30 kneeling, lifting or carrying 10 lb, walking between rooms on the same floor, and standing from an armless chair. D. E. 31 Alley & V. W. Chang, The changing relationship of obesity and disability, 1988-2004, 298 JAMA (2007).

32 23 L. J. Ells, et al., Obesity and disability – a short review, 7 OBESITY REVIEWS (2006).

33 24 Katherine Froehlich-Grobe & Donald Lollar, Obesity and disability: Time to act, 41 AMERICAN JOURNAL OF PREVENTIVE 34 MEDICINE (2011).

35 25 S. K. Collins & E. P. Matthews, Americans with Disability Act: financial aspects of reasonable accommodations and 36 undue hardship, 39 J HEALTH CARE FINANCE (2012).

37 26 Laurie M. Anderson, et al., The Effectiveness of Worksite Nutrition and Physical Activity Interventions for 38 Controlling Employee Overweight and Obesity: A Systematic Review, 37 AMERICAN JOURNAL OF PREVENTIVE MEDICINE (2009).

39 27 See further, Anna Kirkland and Jonathan Metzl (eds) Against Health: How Health Became the New Morality (NYU 40 Press, 2010).

41 28 (Case C-303/06) [2008] IRLR 722. 42 29 See for instance, English v Sanderson Blinds Ltd [2008] EWCA Civ 1421 where the fact that the 43 individual was not homosexual did not mean that harassment on the basis of homosexuality was legal.