01/06/2015 12:53 EST | Updated 03/08/2015 05:59 EDT

The Danger of Calling Obesity a Disability


Obese people, perhaps especially women, face a lot of discrimination. A question that is increasingly asked is whether they should be legally protected from acts of prejudice. Shouldn't people who are obese be judged on their merits with regard to jobs, education, health care etc. and not on their size?

Many societies, including our own, do protect a number of vulnerable groups from bias, mainly through various kinds of human rights legislation, on the basis of such grounds as race, creed, religion, sex, sexual orientation and disability. However, in most jurisdictions, there is no specific protection for obesity.

Enter the Court of Justice of the European Union. It ruled in December that obese people can be considered disabled and, therefore, protected under specific circumstances. The case came from a Danish court that wanted guidance over a complaint of unfair dismissal brought by a 352-pound employee whose job was caring for children. He had succeeded in losing weight but then had regained it. He contended that his obesity was one of the reasons he lost his job. He, therefore, alleged unlawful discrimination.

The Court of Justice agreed that these particular circumstances could amount to actionable discrimination. The Court held that EU employment law did not specifically prohibit discrimination because of obesity. However, a person's obesity could be considered a disability (and thus protected from discrimination) if that person was not being treated "on an equal basis with other workers" in a particular job context. The complainant was not only obese but morbidly so, though this was not viewed as a critical factor in determining his case. The Danish court will now make a determination regarding the alleged discrimination applying the Court of Justice's ruling.

We'll have to wait and see how this ruling is applied in this and other contexts. For the moment it underscores the issue, addressed in other instances in Canada and the United States, whether obesity should be treated as a disability so as to protect fat people from discrimination. (Some large people prefer the term "fat", viewing "obese" as a pejorative, medicalized characterization that has been forced upon them. I use both terms.) Trying to protect the obese from prejudice is laudable. And trying to fit them within a recognized category (disability) in order to be protected reflects imaginative legal thinking. However, characterizing them as disabled in order to shield them may be using the wrong means to achieve the right ends.

Many people in the fat community may object to being thought of as disabled just because they are large. That characterization can reinforce negative stereotypes of obese people as incapable, sick, lazy and whatever when all they are is big. Consider a famous American case of a female exercise coach. A 250-pound aerobics instructor in California who was fit, had many students and no record of performance issues was denied a Jazzercise franchise. The company claimed that only "fit, toned" individuals were eligible; the instructor wanted to be judged "on my merits, not my measurements". That woman was not disabled in any way. She simply wanted to do the job. Her size should not have been a barrier. Indeed, it might have been an inspiration for some students struggling with various body issues.

These complications linking obesity and disability lead some to argue that it is better to protect fat people directly. Doing so would require amending human rights legislation. Not an easy matter but perhaps worth the struggle in the long run. Some states and municipalities in the US do protect obese people explicitly, including by prohibiting discrimination based on appearance. This route has its own complications but the available evidence suggests that there have not been an enormous number of cases claiming appearance bias and those that have been brought have been resolved through the usual processes available for determining similar complaints of discrimination. In any event, public support, at least in the United States, is quite solid for protecting individuals who are obese from discrimination

As we discuss what should be the legal approach to bias against obese people, let's also change our attitudes. Let's salute nutritious eating/drinking and physical activity for everyone. But let's not allow the size of people to dominate our judgment of them. The Jazzercise instructor had it right: it's time to assess everyone "on my merits, not my measurements."


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