The Court of Justice for the European Union has spoken: obesity can be considered a disability, which means that those who meet the standard will receive legal protections at work. The case arose from the experiences of a Danish childminder, Karsten Kaltoft, who was fired after working for his municipality for 15 years. The employer said there were fewer children needing care; Kaltoft said he was selected for dismissal because he was overweight. The European Court was asked to decide whether EU law prohibits discrimination on grounds of obesity.
In its ruling on Thursday, the CJEU held that obesity was not a “protected characteristic”, like race, age or sex, where the law already provides robust safeguards against discrimination in employment. But once obesity reaches the point that it impedes a normal life, it becomes a disability ─ which does merit legal protection. Employers then must make reasonable accommodations to the employee’s condition, for example a larger desk chair, or assigning duties that are not physically overtaxing, the same way they might find a suitable job for a person who becomes blind or is in a wheelchair. The protection offered by this ruling is limited. It will apply mainly to severely obese people (those with a body mass index of 40 or above, less than 3% of English adults) who suffer long-term consequences from obesity that hinder “the full and effective participation of that person in professional life on an equal basis with other workers”. Obviously, this is only a very small portion of the large group of people who suffer discrimination based on their weight, many of whom are perfectly healthy.
That kind of discrimination is pervasive, and can be severe. Many people believe weight discrimination is acceptable and even correct, because fat people are only fat because they are lazy or lack basic self-control. Consider a 2007 survey, conducted by Personnel Today using a sample of 2,000 HR managers, which found that 93% would prefer to offer jobs to workers of a “normal weight” over heavy ones. They also said that they would be less likely to promote obese employees or put them in client-facing roles. Moreover, a significant number thought that they could fairly dismiss someone simply because they were obese. The survey did not specify precisely what constituted “obese” or a “normal weight” but this shows the severely uphill battle faced by overweight job applicants and employees.
While anti-fat bias affects both sexes, women suffer more. A new study, authored by Vanderbilt Law Professor Jennifer Shinall, found that fat women earn less than their peers across different types of work, even when education levels are controlled for. Furthermore, the kinds of jobs available to heavier women were also affected by weight: for every pound gained, the likelihood of a woman working in higher paying jobs that involve interaction with the public, or other forms of personal communication, was lowered.
Moreover, Shinall found that weight bias has almost no statistical impact on the salaries of men. Her study is thus culturally and legally significant as it suggests there is specific ─ and quantifiable ─ bias against fat women. In the long run, this finding might be able to persuade courts that the protections already available to women as women need to be applied particularly to the protection of obese women.
The CJEU ruling on obesity will not lead to significant changes in the British legal framework. The existing position under UK law is that long term conditions triggered by obesity, such as diabetes, can constitute disabilities and therefore be protected. The “origin” of the disability – even if it can be argued the person helped to bring it on themselves, for example by “overeating” ─ is irrelevant. Once the person becomes disabled, whatever the cause, British law offers protection to employees.
Still, the European ruling marks an important step in changing the way we treat weight in our society. We must not stop here: the deck is still stacked against overweight people, particularly women. The UK should take the lead and amend the Equality Act 2010 to include weight as a protected characteristic, seeking to outlaw all weight-based discrimination, whether at work, in education, or while using public and private services. Anti-fat bias matters, it’s wrong, and is so ingrained and widespread that fighting against it is fundamental for extending human rights.