Weight discrimination- are the legal scales tipping?

In September this year a front page headline in the Times newspaper screamed ‘Prejudice against fat people as bad as racism, say Scientists’. Since then ‘fatism’ has reared its head a number of times and whilst the European Court of Justice has now found that there is no general principle of EU law which prohibits discrimination on the ground of obesity, it has also held that in some instances obesity may amount to a disability, entitling the individual to protection from disability discrimination.

In the case of Kaltoft v Municipality of Billund┬áthe ECJ held that an individual will be entitled to protection from disability discrimination if their obesity ‘entails a limitation resulting 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’.

The Kaltoft case concerned a childminder in Denmark whose employment was terminated because of his obesity (which fell within the World Health Organisation classification of ‘severe, extreme or morbid obesity’), resulting in his claim for unlawful discrimination. The Danish Courts made a reference to the ECJ asking:

  • whether obesity is covered by a general prohibition in EU law covering all forms of discrimination in the labour market; and
  • if obesity is a disability under the EU Equal Treatment Directive.

The Advocate General’s opinion was reported in July and the ECJ has now agreed with that opinion. Interestingly not only did the ECJ make it clear that obesity can amount to a disability but they also stressed that the reasons for that disability are not relevant. The key question is whether the disability hinders full and effective participation in working life.

With an increasing number of people complaining of abuse and attack, especially in the workplace, for reasons connection with their weight there is pressure to put obesity on par with sex and race discrimination and create laws to protect obese people from discrimination and harassment.Whether this will happen remains to be seen, but it is quite clear that fat is not just a feminist issue, it may also be an employer’s issue!