BERLIN – The decision by Europe’s highest court that obesity can be a disability will only make a bad problem worse. Too many people in rich countries are already overweight. Giving them legal grounds to feel righteous about their condition, regardless of its causes, will almost certainly expand their ranks.
The case brought to the European Court of Justice involved Danish child-minder Karsten Kaltoft, fired by the municipality of Billund in 2010 after 15 years of service. The town attributed the firing to redundancy, but Kaltoft, who is 172 cm tall and weighs 160 kg, claimed his employer got rid of him because he was overweight: his weight was mentioned in the conversations that preceded his dismissal. The court was asked to decide whether that would have violated a 14-year-old European Union directive banning discrimination against people with disabilities.
The matter turned on whether obesity qualifies as a disability. It’s not expressly described as such in any Danish or European statutes. But the court ultimately sided with an opinion filed by Advocate General Niilo Jaaskinen. He argued:
“In cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the U.N. Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability.”
In other words, if one gets to be so overweight that it hampers one’s work, the employer should find ways to accommodate the obese worker, rather than seek to replace him or her. That might mean buying her an extra large chair or even installing an elevator so she doesn’t have to use the stairs to get to her workplace. It doesn’t matter, Jaaskinen wrote, “whether the person concerned became obese due to simple excessive energy intake, in relation to energy expended, or whether it can be explained by reference to a psychological or metabolic problem, or as a side-effect of medication.” Even if the disability is self-inflicted, Jaaskinen (and the Court) determined that discriminating on that basis shouldn’t be permitted.
Doesn’t that, however, open a path toward classifying alcoholism and drug addiction as disabilities, too? After all, those are also diseases that tend to hinder a worker’s “full participation in professional life.”
U.S. disability law protects recovered alcoholics and drug addicts who became disabled because of their substance abuse, but not people who are still drinking too much or taking drugs.
Lawyers for the municipality of Billund raised that matter at the European court hearings, but Jaaskinen dismissed it:
“In my opinion this concern is misplaced. It is true that, in medical terms, alcoholism and addiction to psychotropic substances are diseases. This does not, however, mean that an employer would be required to tolerate an employee’s breach of his contractual obligations by reference to these diseases. For example, a dismissal because the employee comes to work intoxicated is not based on the disease of alcoholism or drug addiction as such, but is a breach of the employment contract which the employee could have avoided by abstaining from consuming alcohol or the substance in question. Any employer is entitled to expect such an employee to seek the medical treatment that is necessary for him to be able to properly perform his obligations under the contract of employment.”
This approach creates an absurd situation for employers. They can, of course, require employees to refrain from substance abuse and to come to work sober, but they cannot reasonably be expected to stop workers from eating too much junk food. After all, Jaaskinen would undoubtedly also expect employees to be granted some degree of privacy. But it’s not clear how the court expects employers to resolve the contradiction.
The implications are vast. The Organization for Economic Cooperation and Development puts the obesity level at 24.7 percent in the United Kingdom, 14.7 percent in Germany and 13.4 percent in Denmark, Kaltoft’s home country — all of them are now potentially eligible for special legal protections in the workplace. Employers or colleagues can no longer tell someone who is constantly stuffing himself with food — and getting, well, grossly fat as a result — that he should hit the gym and try eating less. Suggesting enrollment in a weight loss program could be seen as potential discrimination.
And it likely won’t be long before obese Europeans begin filing claims for disability payments from their national welfare systems. One can only imagine the costs if the court’s ruling becomes a universal legal norm: According to a discussion paper released by the McKinsey management consultancy last month, 2.1 billion people in the world today are overweight or obese.
Contrary to what Jaaskinen wrote in his opinion, it’s relevant whether or not obesity is self-inflicted. Metabolic disorders can be hard to treat, and can be the basis of a genuine disability. (Kaltoft, for his part, tried surgery to fix his problem, but it didn’t work because of a complication that arose while he was on the operating table.)
Overeating and junk food addiction, however, have always been treated as bad personal choices, akin to binge drinking or injecting heroin, and it’s to everyone’s benefit to keep it that way. No one likes being told he’s getting too fat, but it’s far more helpful than protecting a person’s bad habits.
Leonid Bershidsky, a Bloomberg View contributor, is a Berlin-based writer, the author of three novels and two nonfiction books, and was founding editor of Russia’s top business daily, Vedomosti.
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