Obesity in the workplace: a disability or "merely a healthy appetite?"

OBESITY IN THE WORKPLACE: A DISABILITY OR “MERELY A HEALTHY APPETITE?”

Johann Scheepers

Published with permission of the author.

“Obesity is highly stigmatized in our society. Overweight and obese individuals are vulnerable to negative bias, prejudice and discrimination in many different settings, including the workplace, educational institutions, and healthcare facilities and even within interpersonal relationships.”

[Rebecca Puhl, PhD “Weight Discrimination: A Socially Acceptable Injustice” (2015) Yale University www.yaleruddcenter.org.]

THE INCIDENCE OF OBESITY DISCRIMINATION IN THE WORKPLACE

According to the article referred to supra authored by Rebecca Puhl Director of Research and Weight Stigma Initiatives at the Rudd Centre for Food Policy and Obesity at Yale University, the incidence of discrimination on the ground of obesity is becoming increasingly prevalent in the workplace. Despite the increasing prevalence of obesity, it appears that incidences of weight discrimination are progressively becoming worse.

According to research done by the Rudd Centre, trends of weight discrimination throughout a 10 year period from 1995-2005 were examined and it was established that the prevalence of weight discrimination increased by 66 percent during this decade, from 7-12 percent of the general population. This finding was not a result of increasing obesity rates, but rather specifically demonstrated that more people were experiencing weight discrimination.

In the article the observation is made that weight bias remains “very socially acceptable” in North American culture; it is rarely challenged, and often ignored. As a result, thousands of obese individuals are at risk for unfair treatment, and there are few outlets available to provide support or protection.

The incidence of discrimination on the ground of obesity is not confined to North America. It could be argued that weight discrimination is prevalent within the western world and is not just confined to the workplace. It manifests in all spheres of society Overweight and obese individuals are vulnerable to negative bias, prejudice and discrimination in many different settings, including the workplace, educational institutions, and healthcare facilities and even within interpersonal relationships.

Obese individuals are often stigmatized and subject to bias often manifested by negative stereotypes (e.g., that obese persons are “lazy” or “lacking in willpower”), social rejection and prejudice. Weight stigma includes bullying, verbal teasing (e.g., name calling, derogatory remarks, being made fun of, etc.), physical aggression (e.g., hitting, kicking, pushing, shoving, etc.) and relational victimization (e.g., social exclusion, being ignored, avoided, or the target of rumours).

In the article Puhl submits that discrimination is distinct from stigma and negative attitudes, and specifically refers to unequal, unfair treatment of people because of their weight. For example, an obese person who is qualified for a job but is not hired for the position because of his or her weight may have been the victim of weight discrimination.

Other examples include being denied a job promotion or dismissed on the basis of weight; being denied certain benefits such as access to medical procedures or provided inferior medical care because of obesity; or being denied a scholarship, a bank loan or prevented from renting or buying a home because of the applicant’s weight.

The research done by the Rudd Centre furthermore showed that among American women, weight discrimination was even more common than racial discrimination. Among all adults in the study, weight discrimination was more prevalent than discrimination due to ethnicity, sexual orientation and physical disability.

Almost 60 percent of participants who reported weight discrimination experienced at least one occurrence of employment-based discrimination, such as not being hired for a job.

According to Puhl on average, a person’s chances of being discriminated against because of weight become higher as their body weight increases. It was found that 10 percent of overweight American women reported weight discrimination, 20 percent of obese women reported weight discrimination and 45 percent of very obese women reported weight discrimination.

In an article published by attorney Richard B Cohen "Is Weight Bias A Valid Employment Discrimination Claim?" (September 2015) FisherBroyles, LLP - New York on the subject matter the learned author poses the under mentioned questions and make insightful observations on recent lawsuits in the USA pertaining to the subject matter.  

Should weight be a protected class? How about looks?  Is there a bias in the workplace against people who are “overweight?”

A newly-filed lawsuit presents us the opportunity to discuss the issue of weight discrimination.  Only one state – Michigan – outlaws weight discrimination in employment (as do a small number of municipalities).

According to CBS/Detroit, a former store manager is suing in federal court in Detroit claiming that she was fired after 10 years because she gained over 100 pounds over that time.  The company, however, says it was because of “performance issues.” 

Her evidence?  “She says that she was encouraged to watch TV’s ‘The Biggest Loser’ and reminded about previous Lean Cuisine lunches.”  Her attorney said that “Then it would get a little more intense, things like, at a performance review ‘whatever happened to the girl who would bring in her Lean Cuisine for lunch every day?’” An area manager also allegedly said that her weight was a factor.

Forget for the moment the issue of proving such a claim, and let’s focus instead on the claim itself.

Weight Discrimination

Surveys have shown that “weight bias” is rampant in the employment arena. In fact, on the scale of overweight to severely obese there is a 12 to 100 times more likelihood of discrimination.

In 2014, Cohen wrote in his prior blog about a Vanderbilt University study cited in Business News Daily which noted that “Being overweight in the workplace is tougher on women than on men … Overweight women are more likely to make less money, work in more physically demanding jobs, and have less interaction with customers than average-size women and all men, including those who are also overweight.”

Professor Jennifer Shinall, the author of the study, said that “A morbidly obese woman working in an occupation with an emphasis on personal interaction will earn almost 5 percent less than a normal-weight woman working in an occupation with exactly the same emphasis,” but that this is not true for men.

“No matter what the type of occupation, obese men seem to do just as well as average-size men. They make just as much as non-obese men and make just as much money in both personal interaction occupations and physical occupations.”

The author also wrote about an article in The Pittsburgh Post-Gazette which cited a 2008 study by The Rudd Centre for Food Pol­icy & Obe­s­ity at Yale Univer­sity which “found over­weight adults were 12 times more likely to re­port hav­ing ex­pe­ri­enced weight-based em­ploy­ment dis­crim­i­na­tion than thin­ner per­sons. Of the study’s par­tic­i­pants, 60 per­cent ex­pe­ri­enced at least one oc­cur­rence of em­ploy­ment-based dis­crim­i­na­tion due to weight is­sues.”

Rebecca Puhl, deputy director at the Rudd Center, said that:

“I think what’s safe to con­clude is that weight dis­crim­i­na­tion oc­curs at ev­ery stage of the em­ploy­ment cy­cle from get­ting hired to get­ting fired.  What we see in ex­per­i­men­tal stud­ies, for ex­am­ple, is that hir­ing pro­fes­sion­als are less likely to hire an over­weight can­di­date as op­posed to a thin­ner can­di­date with the ex­act same qual­i­fi­ca­tions.”

“Unfortunately, weight bias is alive and well,” notes the director of communications of an organization known as the Obesity Action Coalition (“OAC”).  OAC’s website states that it “is a nearly 50,000 member-strong 501(c)(3) national non-profit organization dedicated to giving a voice to the individual affected by the disease of obesity and helping individuals along their journey toward better health through education, advocacy and support.”

Does the issue of weight bias or obesity violate the Americans with Disabilities Act (“ADA”)?

Perhaps, if the employee’s weight substantially impairs a major life activity.  It may also implicate the ADA because of medical conditions caused or exacerbated by obesity, such as hypertension or diabetes, which has been held to be disabling.

In a much publicised judgment by the Court of Justice of the European Union (CJEU) the Court on 19 December 2014 held that that morbid obesity can be considered a disability under the EU Equal Treatment in Employment Directive if the employee is prevented from fully participating in professional life because of his or her weight.

In an article by Employment law expert Sue Gilchrist, “CJEU: obesity can be disability if ‘full and effective’ workplace participation limited” Out-Law.com (2015) Pinsent Masons, a case before the CJEU had been brought by the Fag og Arbejde (FOA), a Danish workers' union, on behalf of Karsten Kaltoft [a male plaintive], and a former childminder.

Kaltoft had been employed by a local authority for 15 years, and took care of children in his home. Throughout his employment, Kaltoft was obese according to the definition set by the World Health Organisation (WHO).

In November 2010, Kaltoft's employment contract was terminated. Although this was motivated by a decrease in the number of children needing taken care of, the local authority did not give a reason why Kaltoft was the one chosen for dismissal.

However, his obesity was mentioned during a dismissal meeting. Both FOA and Kaltoft alleged that he had been unlawfully discriminated against on the ground of obesity, which the authority denied.

The Employment Equality Directive creates a general framework preventing discrimination in the workplace on the grounds of religion or belief, disability, age or sexual orientation. It requires employers to take "appropriate measures" to ensure that those with disabilities are treated equally at work unless these measures would "impose a disproportionate burden on the employer".

According to Gilchrist the CJEU has ruled previously that the protected grounds listed in the directive should not be "extended by analogy". For this reason, it said that obesity could not be regarded as an additional ground against which discrimination was prohibited by the directive. However, it could be classed as a 'disability' if it prevented or limited the worker's participation in the workplace on the same basis as other employees.

"It would run counter to the very aim of the directive, which is to implement equal treatment, to define its scope by reference to the origin of the disability," the CJEU said.

"The concept of 'disability' within the meaning of [the directive] does not depend on the extent to which the person may or may not have contributed to the onset of his disability."

"It should be noted that obesity does not in itself constitute a 'disability' within the meaning of [the directive] on the ground that, by its nature, it does not necessarily entail the existence of a limitation …

However, in the event that, under given circumstances, the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, obesity can be covered by the concept of 'disability'," it said. [Emphasis added].

According to Gilchrist the UK courts have previously ruled that obesity itself does not amount to a disability. "However, obesity could mean that an employee would have other impairments which could amount to a disability under the Equality Act, such as diabetes or depression."

In the light of the CJEU judgment Gilchrest observed that UK employers should consider whether, in particular circumstances applying to individual employees, the employee “might be disabled.”

“If obese employees are protected by disability discrimination laws, employers will be required not to discriminate and also to consider reasonable adjustments for them as they do for other disabled employees," she said.

In short: the CJEU found that a morbidly obese person could be classified as disabled. The court, stressed its commitment to protect against all discrimination, stated that it is not necessary that the actual work being performed be hindered in order to see obesity as a disability. As long as an employee is being hindered from "full and effective participation on equal terms with others," then weight could very well be a disability.

It should be mentioned that the CJEU handed down judgment in the form of a preliminary ruling and it was therefore for the referring court to ascertain whether the fact that Mr Kaltoft carried out his work for approximately 15 years, his obesity entailed a limitation or ‘disability’ which resulted from long-term physical, mental or psychological impairments which in interaction with various barriers hindered him from the full and effective participation in his profession on an equal basis with other workers; and inevitably led to his dismissal.

OBESITY IN THE WORKPLACE – A SOUTH AFRICAN CASE STUDY

Pursuant to an approach by a labour consultant acting on behalf of a client the under mentioned scenario was presented and a request for advice followed. Suffice it to mention that the client apparently decided to make use of the service of a person more qualified on the subject matter and due to financial constraints for the purpose of obtaining an opinion.

Be that as it may writer elected to write this article. The client employs a considerable number of employees in the capacity of “heavy duty” truck drivers. Client conducts business as a temporary employment service (TES), or as it is commonly known as a “labour broker”. The TES hires out its drivers to other legal entities for periods determined between the TES and the client.

As may be gleaned the TES and/or the client, for reasons not fully disclosed, decided that its truck drivers should be ‘lean and mean’, so to speak in that they should weigh no more than a maximum 68 kilograms failing where to the service of those drivers in excess of “the maximum bodyweight” should be terminated based on the ground of “the inherent requirements of the job.” [See: section 6(2)(b) of the Employment Equity Amendment Act, no 47 of 2013 (the EEA)].

In short: the client desired an opinion as to the lawful implementation of a “new” condition of employment or inherent job requirement insofar as body weight was concerned, without being in contravention of the recently amended South African labour laws.

Client shown remarkable foresight in that it anticipated that the unilateral introduction of a maximum weight as an inherent requirement of the job may be in contravention of statute especially after having been informed by the labour consultant of the provisions of the recent amendments to SA labour laws; those pertaining to “unfair discrimination” and "a dismissal is automatically unfair…if the reason for the dismissal is a refusal by employees to accept a demand in respect of any matter of mutual interest ."

The introduction of a maximum weight requirement could also be deemed as a form of “breach of contract” in that the majority of truck drivers at first glance and without the necessity of “a formal weigh in” would easily tip the scale in excess of 68 kilograms which apparently was a further matter of great concern to the client.

At this juncture it was deemed appropriate to refer to the relevant statute[s] as a point of departure for the purpose of this article.

THE PROVISIONS OF SOUTH AFRICAN LEGISLATION

At the outset it is apposite to refer section 9 and 10 of the Constitution of the Republic of South Africa, 1996 – “CHAPTER 2 ‘BILL OF RIGHTS’” in that it enshrines the rights of all people in SA and “affirms the democratic values of human dignity, equality and freedom.” [See: section 7 ‘Rights’ – Constitution].

Section 9 and 10 of the Constitution stipulate as set out hereunder:

“9. Equality

(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

10. Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.”

The learned authors in the publication by D du Toit et al “Labour Relations – A Comprehensive Guide” 6th ed (2015) 754, refer to the “Code of Good Practice: Key Aspects on the Employment of People with Disabilities” GN 1345 GG 23702, 19 August 2002 – EEA wherein “people with disabilities” are defined as:

“… [P]eople with disabilities as ‘people who have a long-term or recurring physical or mental impairment, which substantially limits their prospects of entry into, or advancement in, employment’. The Code of Good Practice relies on this definition in providing guidelines for employers on the protection and advancement of disabled persons.

An impairment may be either physical or mental, or both. “Physical impairment” means a partial or total loss of a bodily function or part of the body, while ‘mental impairment’ means a clinically recognised condition or illness that affects a person’s thought processes, judgement or emotions.

[This is in line with the law in other jurisdictions: see, eg, the Americans with Disabilities Act of 1990. In Canada, the following conditions have been found to fall within the definition of handicap or disability: Matlock v Canora Holdings Ltd (1983) 4 CHRR D/1576; hypertension and high blood pressure: Wamboldt v Dept of National Defence (1983) 4 CHRR D/1479; depression: Vitcoe v Dominion Life insurance Co. (1984) 5 CHRR D/2029; dyslexia: Arnold v Canada (Human Rights Commission) (1996) 30 CHRR D/134; and obesity: Commission des Droits de la Personne c la Cite de Cote St Luc (1982) 4 CHRR D/1287 quoted in Tarnopolsky & Pentney Discrimination and the Law 7A-8–7A-9.]

“Long-term” refers to impairment lasting or likely to last for at least 12 months. “Recurring impairment” is one that is likely to happen again and is substantially limiting, including a constant chronic condition, even if its effects fluctuate.

“Progressive conditions” are conditions that are likely to develop or change or recur. People who have a progressive condition are considered to suffer disability once the impairment becomes substantially limiting. Persons with recurring conditions which have no overt symptoms or do not substantially limit them are not considered to be suffering a disability.

Impairment is considered “substantially limiting” if its nature, duration or effects substantially limit a person’s ability to perform the essential functions of the job for which he or she is being considered.

Employers “must reasonably accommodate” the needs of persons with disabilities, including applicants for jobs, during recruitment and selection processes; in the working environment; in the way work is done, evaluated and rewarded; and in the benefits and privileges of employment.

“Reasonable accommodation” includes:

• adapting existing facilities or equipment or acquiring new equipment;
• reorganising work stations;
• changing training and assessment materials;
• restructuring jobs so that non-essential functions are reassigned;
• adjusting working time and leave; and
• providing special supervision, training and support in the workplace.

According to Du Toit an employer need not accommodate applicants or employees with disabilities if doing so would impose an ‘unjustifiable hardship’ on the business of the employer.

“Unjustifiable hardship” is defined as ‘action that requires significant or considerable difficulty or expense’ and involves considering, among other things, the effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business.

In Standard Bank of SA v CCMA [2008] 4 BLLR 356 (LC) para 98; [ see also MEC: Education, KZN v Pillay 2008 (2) BCLR 99 (CC) para 76], where the Labour Court held, unjustifiable hardship means ‘(m)ore than mere negligible effort’, and, as in the case of reasonable accommodation, it imports a proportionality test.

Whether hardship is justifiable will differ according to the circumstances of each case. In Standard Bank of SA v CCMA it was held that the expected modification or adjustment in the workplace should be based on a ‘pragmatic common sense approach’.

The following standard from Canadian law, it was found, is worth importing into our jurisprudence: “The most appropriate accommodation is one that most respects the dignity of the individual with a disability”.

If an employee becomes disabled the employer should, where ‘reasonable’, reintegrate him or her into work after consulting with him or her to assess whether the disability can reasonably be accommodated

In Standard Bank of SA v CCMA for example, it was held that the employer had failed to consult meaningfully the employee as it had not sought the expertise of an occupational therapist and had not kept an open mind to suggestions of accommodation made by the employee. If reasonable, the employer should explore the possibility of offering alternative work, reduced work or flexible work placement.

If an employee with disabilities cannot reasonably be accommodated, the employer may terminate the employment relationship on grounds of incapacity. If employees with disabilities face dismissal due to operational requirements, the employer may not use selection criteria that discriminate unfairly against them, either directly or indirectly. [Emphasis added].

It was therefore deemed appropriate and in clarification to quote the ‘new’ or amended section 6(1) of the EEA that deals with the Prohibition of ‘Unfair’ Discrimination:

‘‘(1) No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds [listed grounds], including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.’’; and

(2) It is not unfair discrimination to –

(a)…

(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job;

(3)…;

‘‘(4) A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in subsection (1), is unfair discrimination.” [Emphasis added].

Some commentators refer to section 6(2) of the EEA as ‘the escape clauses’ insofar as the said clauses provide a defence based on the contention that discrimination within the SA context may be fair in that section (6)(2) of the EEA stipulates that:

“(2) It is not unfair discrimination to—

(a) take affirmative action measures consistent with the purpose of this Act; or

(b) distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.”

In IMATU & another v City of CapeTown [2005] 11 BLLR 1084 (LC) the Court pronounced on the meaning of “Inherent requirements of the job”. In City of Cape Town the respondent was to prove that the discrimination related to an inherent requirement of the job.

The Court held at [103] that the term “inherent requirements of the job” means - a permanent attribute or quality forming an essential part of the job in question.

Reference was made to an article by Dupper & Garbers in “Employment discrimination: A commentary” in Thompson and Benjamin "South African Labour Law" (Juta 2004) wherein it was submitted submit that the defence should be applied restrictively.

Any legislatively formulated justification of discrimination constitutes, in effect, a limitation on the constitutionally entrenched right to equality and this militates against an expansive reading of the phrase “an inherent requirement of the job”.

The term “inherent requirements” is not defined in the EEA but originates from the Discrimination (Employment and Occupation) Convention 111 of 1958 of the International Labour Organisation, in respect of which the committee of experts has emphasised the need for a strict interpretation.

In Association of Professional Teachers & another v Minister of Education & others (1995) 16 ILJ 1048 (IC), 4 the Industrial Court held that this defence should be allowed only in very limited circumstances.

The long title of the EEA includes as one of the purposes of the Act the giving of effect to the obligations of the Republic as a member of the International Labour Organisation. Article 3 of Convention 111 provides, inter alia:

“Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.”

The term “inherent” has been interpreted as “existing in something, a permanent attribute or quality; forming an element, especially an essential element, of something, essential” (Du Toit et al Labour Relations Law (4ed Butterworths) at 569.

The ILO has identified the following as examples of unacceptable requirements:

• the evaluation of an individual’s competence for a task based on stereotypes of the group to which the employee belongs;

• requirements based on the preferences of employees and clients;

• requirements that tasks should be performed in a particular way when there are other reasonable ways of doing so; and

• qualifications based on “light” or “heavy” work which amount to a veiled distinction between the sexes that might impede the promotion of women. [City of Cape Town at 104].

It is submitted that in the light of the case law and authoritative publications referred to above an employer would find it difficult to discharge the onus by proving that discrimination is fair based on the defence of “inherent requirements of the job.”

COMMENTARY:

Referral was made supra to Gilchrist in that the UK courts have previously ruled that obesity itself does not amount to a disability. "However, obesity could mean that an employee would have other impairments which could amount to a disability under the Equality Act, such as diabetes or depression."

Insofar as writer is aware the South African Courts have to date not directly pronounced upon the legal position as it pertains to discrimination based on the ground of obesity.

However as to mental illness [depression & nervous breakdown] in Marsland v New Way Motor & Diesel Engineering (2009) 30 ILJ 169 (LC) the employee was employed as the marketing manager. He suffered a nervous breakdown after his wife left him and was hospitalised. He continued to receive treatment after his return to work.

After his return to work, the employee was subject to such humiliating treatment that it became intolerable for him to remain in employment.

He instituted a claim of constructive dismissal for an automatically unfair reason, namely discrimination on the grounds of mental illness.

This required three separate enquiries:

• whether mental illness constituted a discriminatory ground in terms of section 187(1)(f) of the LRA;
• whether there was a constructive dismissal; and
• whether the principal reason for the dismissal was discrimination on grounds of mental illness.

As to the first issue, the Court relied on the Constitutional Court’s decision in Harksen v Lane NO 1998 (1) SA 300 (CC).

There the Court held that the constitutional grounds of discrimination were not a closed list and could include any “discrimination on an unspecified ground if it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or affect them in a comparably serious manner” (at 322).

The Court had no difficulty in holding that discrimination on grounds of mental illness impairs the fundamental dignity of a person as a human being and that, accordingly, mental illness is a prohibited ground of discrimination in section 187(1)(f).

It was necessary to go further and argue that that discrimination was unfair taking into account the factors identified in Hoffman v South African Airways 2000 (11) BCLR 1211 (CC) at paragraph 27.

As to the second issue, the treatment was so humiliating that the Labour Court had little hesitation in finding that the employee had been constructively dismissed.

In order to determine the third issue, namely whether the reason for the dismissal was the principal cause of the dismissal, the Court found, in the absence of any evidence tendered by the employer, that the change in attitude was as a result of his nervous breakdown.

This was the principal cause underlying the humiliating treatment that led to his constructive dismissal.

Having regard to the case law and articles referred to above it is submitted that a similar scenario with the same adverse legal consequences, as discussed in Marsland , Standard Bank of SA and the matter before the CJEU in Kaltoft could arise within the South African context where the workplace becomes unbearable for the overweight or obese employee by virtue of being subjected to unfair discrimination and in particular due to unequal, unfair treatment of the employee because of his or her weight.

South African employers should take cognisance of the case studies, case law and articles discussed herein in respect of obesity as a potential disability and approach such cases in accordance with the principles of fairness and lawfulness as pronounced upon by South African and the European Courts.

Johann Scheepers

03 April 2015         [Updated: 28 October 2015]

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