Splitting Hairs: Obesity & Disability
Is obesity a disability? Do laws prohibiting discrimination against people with disabilities cover people with obesity? The answers to these questions are subtle and they are changing. A new ruling from the highest court in the European Union may mean that employers and business will have to do more to accommodate people with obesity. And it’s broadly consistent with some recent rulings in U.S. courts.
The case that’s making the news arose in Denmark. A childcare worker sued his employer, claiming that he was dismissed because of his weight. The court in Denmark sought a ruling from the European Court of Justice (ECJ) regarding the status of obesity under European law governing disability rights. The ECJ ruled that obesity was not a protected class under European law, but that disabilities arising from obesity could be protected just like other disabilities. So if an employee’s obesity interferes with “full and effective participation of that person in professional life on an equal basis with other workers,” then it can be treated as a disability.
Thus an employer would have to make reasonable accommodations, like larger chairs and protection from verbal harassment. Legal experts say that this will also have implications for businesses providing products and services to the public in Europe. Seating arrangements to accommodate larger people, for example, may be required.
With this ruling, a similar situation is emerging in both the U.S. and Europe with regard to obesity and discrimination. U.S. courts have made comparable rulings of their own. People with obesity do not enjoy explicit protection from discrimination based on weight — unlike age, race, gender, and religion. People with disabilities are protected, but obesity, per se, is not a disability. When obesity gives rise to a disability, though, the protection kicks in.
Maybe the courts are splitting hairs, but that’s what lawyers do. This means that employers need to take greater care than they have in the past about discriminating against people with obesity — unless they want to spend their time splitting hairs with lawyers.
Click here for more from the BBC and here for an interview with OAC Chairman Ted Kyle on Huffington Post Live, along with more background on the story.
Splits, photograph © Angie Harms / flickr
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December 30, 2014 at 1:17 am, Marcus Rey Williams MD said:
In the case of morbid obesity, treated by gastric-bypass, which then resulted in unanticipated or unforwarned physical alcohol dependence, how would that affect the hiring of a physician for employment. In my case, never having been more than a social drinker, I followed the recommendation to not drink for a year, and then return to my former social drinking behavior, with no indication that alcohol dependence might ensue. I went into successful treatment and now am seeking employment. Is the alcohol dependence an obesity induced disability?
Physicians who have experienced any alcohol impairment, even though they face it openly and comply with treatment and screening, face severely reduced job opportunities. When they do gain employment, often face lower wages, demeaning treatment, poor collegial acceptance, and a very low chance of advancement in any job position. I found one national Hospitalist Company that would not even accept an application secondary to my circumstances. What recourse does this give an impaired physician, who became so due to a medlical or surgical treatment they received?
December 30, 2014 at 5:00 am, Ted said:
These are really good questions that I feel inadequate to answer. Thank you for posing them. I suspect that there are gaps between the letter of the law and what employers actually do. Discrimination when seeking employment is likely a bigger problem than when already employed. This might be worth a read: http://www.usccr.gov/pubs/ada/ch4.htm
January 02, 2015 at 7:12 pm, GWKern said:
I am not sure how responsive this replay is to the discussion.
Employers in Louisiana are encouraged to hire persons with a preexisting permanent partial disability that they consider to be a hindrance to employment.
The Louisiana Second Injury fund (LSIF) protects the employer’s experience modifier. One’s e-mod is driven first by frequency of injuries and secondarily by the cost of the workers comp claim.
The second component is employer knowledge of the pre-existing condition and the final test is merger between the prior condition and the new injury.
When an employer is able to prove all three elements then the LSIF will reimburse the payer (the employer if self funding or the employer’s insurer if not self funding) There is an indemnity retention and a medical retention that must be met. The program is directed at high dollar cases.
One case we handled involved a 50 year old painter who fell from a ladder and suffered spinal injuries that left him paralyzed for life. This worker had an amputate thumb on his right hand and restricted range of motion in his left elbow (25%) ppd. The LSIF approved the employer’s claim capping the value of the reported loss to NCCI at 50K instead of 4M. The LSIF will reimburse the payer all amounts in excess of 50K.
The LSIF lists 30 condition that will give the employer a presumption that the prior condition was a permanent partial disability and constituted a hindrance to employment. Obesity is not on that list. Obesity is not considered to be a permanent condition by the LSIB nor is it considered to be a hindrance to employment.
In the 1990 1 in every 100 high cost seems to involve obesity today I would put that number at 25%. I have limited my focus to Morbid obesity.
Is morbid obesity a hindrance to employment – assume that an employer with a job opening has two candidates to select from, one is obese (5″11″ 200 pounds) the other is 5’11” 350 pounds, they are both equally qualified to safety preform the job offered. Which person is the employer more likely to tender a job offer and why?
Person in the morbid obese category often have the underlying conditions associated with metabolic syndrome including: insulin resistance/diabetes, cardiovascular diseases, Triglycerides, non-alcoholic fatty liver diseases, stroke, polycystic ovary syndrome, high blood pressure, mental decline, degenerative orthopedic diseases. All would seem to constitute a good reason to avoid such a high risk hire.
In my practice it is fairly easy to establish knowledge that the employee was morbidly obese however establishing employer knowledge of the underlying conditions is harder to establish either because the employer fails to ask about these underlying conditions, or the employee is themselves unaware of their underlying health issues.
One object that is always raised by the board is that morbidly obesity is not a permanent condition. Diabetes is one of the permanent presumptive conditions listed by the board. Type II diabetes is a sever manifestation of insulin resistance. If the condition is treated and if the person is no-longer insulin resistance then one could argue that diabetes is not a permanent condition (when successfully treated).
New research suggests that morbid obesity, left untreated, is a permanent condition. Diet and exercise alone have not proven to be an effect treatment for morbid obesity. The condition often end in a pre-mature death related to one of the underling metabolic conditions.
I agree that morbid obesity can still be a social stigma but in my practice is see increased acceptance. Some see it as a sign of affluence or may just like being big. We see more roles for over weight women on TV shows and movies. Are we promoting tolerance – I think we are. Instead of promoting tolerance we should be educating ourselves to the health risk and the nutritional solutions.
Obesity and morbid obesity pit the economic issues associated with food industry, health care industry and government services against the health of the individual and the wellness of society in general.
The second injury fund denied my last morbid obesity case, I have filed suit in civil court. The LSIF, in my opinion, does not wish to open this door because of the number of high dollar workers compensation cases, the easy of establishing the employer’s prior knowledge and the ease with which merger can be proved.
January 02, 2015 at 8:47 pm, Ted said:
Thanks for this detailed comment, Mr. Kern. It’s a lot to digest.
I am not sure about your suggestion that, “instead of promoting tolerance, we should be educating ourselves to the health risks and nutritional solutions.”
I am not aware of that we have “solutions” for severe obesity. What we have are tools for managing it. They are helpful, but they are not reliable cures. And I don’t understand the suggestion that we should not be “tolerant” of people with a chronic condition for which reliable cures are not available. I already see plenty of intolerance and it only compounds the harms, driving people away from medical care.