The issue of whether the law forbids obesity discrimination and/or if morbid obesity should be considered a disability may soon be decided.  At least in the EU —  we have just learned that the European Court of Justice’s advocate has issued a non-binding opinion which is likely to be a key factor in the decision.    And the US might not be far behind.

The EU May Soon Have A Decision On Obesity As A Disability

Recently we recommended a new set of articles put out in the Didlaw Ltd. newsletter, the first of which briefly described disability under the Equality Act of 2010.   We commended the article to our US readers, who continue to comment on our discussion about obesity, who may be interested to know that this UK post declares that “[t]he most pressing issue around definition of disability right now is whether obesity is a disability.”

“With 64% of the UK workforce said to be obese a finding by the European Court that obesity is a disability could have wide-reaching implications. The EAT recently held in Walker v Sita that obesity is not a disability in itself but might be capable of being one if there is a significant degree of functional impairment.”   See also an article on the subject on the Bristows’ website.

This issue has been taken up by the European Court of Justice, in the case of Kaltoft v Billund Kommune, which will decide soon whether EU law forbids obesity discrimination and/or if morbid obesity is a disability.

We have just learned from the Irish Independent that the Court’s advocate general, Niilo Jääskinen, who is an adviser to the Court, has issued a non-binding opinion that EU law sets forth “no general, stand-alone prohibition on discrimination on grounds of obesity,” but that “extreme” obesity, classified as having a body mass index (BMI) of more than 40, may be a disability.

Workplace Savings and Benefits quotes the advocate as saying: “If obesity has reached such a degree that it plainly hinders participation in professional life, then this can be a disability.  The notion of disability is objective and does not depend on whether the applicant has contributed causally to the acquisition of his disability through self-inflicted excessive energy intake.  Otherwise physical disability resulting from reckless risk-taking in traffic or sports would be excluded from the meaning of disability.”

The State of US Law

All of this sounds a little like a summary of the law in the US.

In our post of April 25th, however, we discussed a recent US court decision which said that obesity may very well be a disability.

We noted in our blog on April 28th that “[t]he issue of obesity and employment discrimination seems to sit on a fault line of sorts, eliciting strong views about the meaning of “disability,” “disease,” and “personal responsibilty.”  And on May 5th, we published a number of reader comments on this issue.

Last year we discussed whether for ADA purposes obesity is a disease — as was held by a new decisison by the American Medical Association. We posted that the AMA declaration that obesity is a disease would likely spur lawsuits under the Americans with Disabilities Act, and may push the courts to rule that obesity is a disability.

We may only need wait a short while to find out what will happen.