EU Court rules obesity a disability, kind of

January 5th, 2015 by MorganDowney Leave a reply »

The European Union Court of Justice has ruled that obesity may be considered a disability and employers may have to make accommodations. As with the ruling of the Social Security Administration in this country, the EU court ruled that obesity itself is not a disability but it can cause hindrances that can be considered a disability.

In the United States, several laws are involved. Under the Americans with Disabilities Act, morbid or severe obesity may be considered a disability, irrespective to any underlying physiological disorder. Several courts and the Equal Employment Opportunity Commission (EEOC) are re-examining this issue. (The EEOC is looking at the applicability of the ADA to employer wellness programs.)

The Social Security Administration (SSA) in 1999 issued a rule that removed obesity from its Listing of Impairments because of the wide variation in body weight and effect on employment. But the SSA continued to consider obesity as a medically determinable impairment and may be considered when combined with other impairments in determining disability. (Disclosure: I was very involved in the re-opening of this rule-making and advocated for equal treatment of cases of obesity, especially morbid obesity, in the eligibility of persons to qualify for disability income support.)

Predictably, the chorus offended at any social equity for persons with obesity manned the ramparts to warn about the dangers of treating obesity as a disability. (The decision of the American Medical Association that recognized obesity as a disease met the same kind of resistance. See here, here and here.) For example, this opinion piece by the Editorial Board of the  Chicago Tribune sees creeping European thinking infecting Americans and distorting the Americans with Disabilities Act. Woe are we if employers have to  accommodate the more than 15 million people in the US who have morbid or severe obesity! The Editorial Board mistakenly states that the basic idea of the ADA was, “empowering people who are the unfortunate victims of fate. Obesity is usually the result of individual decisions, and it can be ameliorated by individual decisions. Those facts (?) argue for leaving the government out of this realm.” As someone who lobbied for passage of the ADA,  I can attest that it was not for “unfortunate victims of fate.” It was for all persons with an actual or perceived disabling condition, even like HIV/AIDs, regardless of the contribution of individual behavior.  The ADA’s coverage of “perceived” disabling conditions easily refutes the Editorial Board’s so-called “facts.”

A contrary view is offered by Deborah A. Cohen of the Rand Corporation who points to the regulation of alcohol in the United States to successfully reduce consumption as a model. In a op-ed essay in Newsweek she states, “So long as restaurants continue to automatically serve quantities of food in excess of what customers can burn, and supermarkets promote junk foods with considerably more vigor than healthy foods, it can be anticipated that most people will eat too much and become at risk for chronic diseases.”

The EEOC will play a critical role in the evolution of considering obesity as a disabling condition. Some years ago the EEOC took the position that severe or morbid obesity was an impairment, although not obesity per se. However, in 2008, Congress enacted the Americans with Disability Amendments Act which generally broadened the definition of disability. Subsequently, the EEOC in 2011 removed from its guidances language stating, “except in rare circumstances, obesity is not considered a disabling impairment.”

We have seen that employees with obesity suffer a well-documented “wage penalty” for their condition, as well as hostility in the workplace. Offering legal protection for persons with obesity only provides the same level of equity with other persons experiencing a disability or perceived disability. It appears that the national debate over individual responsibility versus control over environmental influences will continue for sometime.