Today in a landmark decision a European Union court decided that “obesity”in and of itself does not constitute a disability, but that if it creates a situation that meets the criteria of disability (where, “under particular conditions, it hinders the full and effective participation of the person concerned in professional life on an equal basis with other workers“) then employers must treat it as a disability.
Being the internet, everyone agreed that this is a completely logical decision and moved forward to make appropriate reasonable accommodations for fat employees who meet the definition.
JUST KIDDING!
People freaked out about how unfair it is for employers to have to make reasonable accommodations for qualified fat employees instead of just firing them or refusing to hire them in the first place, how being fat shouldn’t constitute a disability because it’s fat people’s own fault that they are disabled and they could lose weight, and the always popular argument that this would promote obesity (because apparently unemployment – and really, making fat people’s lives generally terrible – is the key to future thinness.)
Let’s talk about why this court decision makes perfect sense. For those of us in the States, the ADA definition of disability is very similar to that of the EU:
An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.
When it comes to asking whether obesity constitutes a disability, we have to examine the definition of “obesity,” which is someone whose weight in pounds times 703, divided by their height in inches squared is greater than or equal to 30. That definition includes Tom Cruise, The Rock and me among many others. Obviously, not everyone who meets the definition of “obese” (which is deeply problematic in and of itself) is going to meet the definition of “disabled/person with a disability” as defined by the ADA.
This is another area where we find intersectionality between ableism and sizeism. Many fat people may meet the definition, not because they have an impairment but because they are “a person who is perceived by others as having such an impairment.” which is to say that people make all kinds of wild guesses about what fat people are capable of according to their appearance-based stereotypes and bigotry. Also, fat people who have unrelated disabilities often find their disabilities blamed on their body size which can further complicate things.
Let’s examine the common arguments against the court’s decision, starting with the idea that body size can’t be a disability because it is the fat person’s “fault.”
Ignoring the complexity of body size, importantly, nowhere in the ADA definition does it say “unless the impairment is the fault of the person, in which case no accommodations shall be given.” I assume that’s because the idea that we should try to determine if a person’s disability is their fault before providing accommodations that allow them to be a welcome part of society is absolutely horrifying.
Are those who suggest that body size can’t be a disability because it’s the person’s fault also suggesting that we deny accommodations to people who were disabled by car accidents that were their fault? People whose impairment is the result of choosing to be an athlete? What about people whose disabilities are the result of elective weight loss surgery gone terribly wrong (as it so very often does)? If someone meets the ADA definition of disabled/person with disabilities, then they should be covered and there shouldn’t ever be a discussion of fault.
Note that the idea that fat people could lose weight and thus shouldn’t be considered disabled also does not apply here. First, because there isn’t a single study where even a tiny fraction of people have been able to maintain weight loss that would move them from the “obese” category to “normal weight” or even “overweight” long term. But also because the ADA rules apply to the person standing in front of you who meets the definition right now, not the person you think they might someday be who would not.
Finally, onto the “it’s unfair to employers” thing. The idea of providing “reasonable accommodations” is actually about the fact that buildings and businesses are built by people who, either through ignorance or choice, create them as if disabled people/people with disabilities and, often, fat people, don’t exist. Then many of them have to be forced by law to accommodate those who they ignored. And then many of them complain about it and do the bare minimum required by law, thereby missing out on amazing employees and contributing to a society that excludes many people.
So when someone asks me whether or not I think “obesity” is a disability, my answer is basically the same as the EU court. If someone meets the definition of disabled/person with disability, then they should be given reasonable accommodations. Moreover, I would love to be part of a society where businesses (and everyone really) were working hard to destroy the barriers to employment/participation in society, not working hard to justify them.
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I applaud the EU court decision. They wisely avoided the all-or-none approach. Arthritis can cause a person to be disabled (by any definition), but not every person with arthritis is disabled, and arthritic disability may be specific to certain contexts and situations. Likewise with fatness.
The language in the definition of disabled that concerns me is the final line, “…perceived by others as having such an impairment.”
By that criteria, Ragen, you are disabled and incapable of the athletic pursuits you are training for, because others perceive you have an impairment in completing a marathon or an Ironman.
Whether or not someone is disabled should not be based on the perception of others.
I think that part is meant to protect people from perceived disabilities; i.e. not only can you not discriminate against someone for having an actual disability but you can’t discriminate against them for the disability you think they have that they don’t have. It goes for other categories, too – discriminating against someone because you assume they are gay, for example, even if they aren’t, still falls under the category of discrimination.
That’s quite possible, though the wording leaves a lot to be desired. The paragraph quoted makes it sound as though one can be defined as disabled based solely on the criteria of being perceived by others as disabled.
Granted, since we don’t have the preceding or following paragraphs, that could very well be clarified by context, if this is part of the section that prohibits discrimination.
I’d like to think that laws like this wouldn’t even be needed, but history proves otherwise.
I don’t think the decision is meant to imply that someone can be defined as disabled because other people perceive them that way. Rather (at least according to U.S. case law), it means an employer can’t discriminate because they believe an employee has a disability, regardless of whether or not they are correct. For example, if I, as an employer, discriminate against an applicant because I believe him to have some sort of disability, then it turns out he doesn’t actually have that disability, it wouldn’t actually get me off the hook.
*claps until her hands sting* Ow!
Strange, the two fat chicks at my group at work are the only females who are not applying for a disability-ranking .. the other three (two remarkably slim, one sturdy, but no BMI over 30) have all (physical) issues.
My wife had appointments yesterday in preparation for surgery in a few weeks. The NP that did her physical screening said my wife was the healthiest person she had seen in at least a week. Amazing. Being fat doesn’t make her unhealthy. Go figure.
As much as I hate the idea of fat being considered a disability in and of itself, at least this paves the way for legal protections for us.
So if obesity is possibly contributing to an issue then it’s a disability? This seems like it could cause issues where two people have the same problem but one can claim that obesity is a contributing factor and the other one can’t.
Lets say there is a company that has a dress code with certain shoes that are acceptable to wear for employees interacting with customers.
If someone claims they need to wear more comfy shoes because their feet hurt too much from being obese, is this an obesity related disability that needs to be accommodated? Can they get out of being limited to the dress code shoes?
If so, then what if a very thin person claims their feet hurt very badly too, even though they cannot claim it’s from obesity? Will they still be forced to wear the dress code shoes that hurt their feet since obesity isn’t contributing to the issue?
I don’t know about EU law. The way reasonable accommodation procedures are meant to work in covered workplaces in the US is the employee must provide in the case of a non-obvious disability/accommodation medical documentation attesting to among other things the nature of their condition and the impact on their life activities. Further this documentation must explain what accommodation is being requested and if it is not obvious, how it will help the person do their job.
So a person classified as obese with no record of functional impairments might struggle to prove the necessity of the accommodation. On the other hand a thin person with a knee injury or back problems should be able to obtain the accommodation—in a workplace that does not discriminate against its employees with disabilities.
So to answer your question about a thin person being made to wear uncomfortable shoes: I don’t know–it depends on whether or not they have a disability.
This is in no way creating “issues” as you suggest. Reasonable accommodations exist for people with disabilities. It is not a matter of being “comfy.” It is a matter of being able to do one’s job. Period.
Employers aren’t even required to provide the best accommodation or an employee’s preferred accommodation. They just have to provide an accommodation that will work. That’s it.
Fairness is not always arrived at by sameness–a fact that is easily grasped when only the budget people in an office have the budget software. Reasonable accommodation works the same way–people with disabilities get what they need to do their specific job in their specific situation.
Everyone else would do well to chill out and just focus on their own work. Whatever questions there are about implementation and interpretation, I can assure that thin able-bodied people are going to continue to enjoy the many privileges those identities afford.
I am unable to stand for long periods of time in most types of shoes because of severe foot pain. I have no disability that I can point to as causing this issue. It’s possible it’s caused by obesity but I had the issue even back when I was thin. It’s not an issue if I am allowed to choose my footwear. That’s why I was contemplating that particular scenario.
It looks like under this new law, if I can point to obesity as the cause I could claim my issue is from some disability, even though I know it’s likely not the cause. So it was just curious ramblings on my part.
I see what you are saying now. I’m sorry for both misunderstanding and writing a whole treatise based on that misunderstanding.
I hope you don’t find yourself in a mandated uncomfortable footwear situation. It might be useful information for someone reading, that sometimes a pain condition can qualify as a disability in and of itself.
I too have troubles with most shoes. I do best with only sneakers, which aren’t allowed in most workplaces. Sucks.
I know I get angry and belligerent sometimes…I know I’m happy most of the time but I get very angry when I don’t see people like me represented in:
1. Medical professions
2. Public safety professions (police/firefighter/lifeguards)
3. The military
4. CEOs
5. Politicians (some local politicians are making headway).
If we truly lived an free and fair society there would be no barriers to me, as I am NOW doing any one of those jobs. I have an above average IQ and a great ability to learn. There is no way that simply because of my physical appearance that I should be limited from every facet of the above jobs.
Because fat people are limited from doing things that are “cool” we tend to become shut in, sad, depressed, etc… this has to change and it has to change now.
I’ve thought of joining the military, but I discovered the Canadian Armed Forces (now Navy, Air Force and Army again) have a weight limit, and I far exceed it, even to be a chaplain.
I wanted to be a doctor in the US Navy to make my father proud. Not run around and shoot or anything like but was I seriously surprised to find out that not only does the Navy discriminate against fat people (my father always told me this but I though he was just being cruel) but that medical schools also have a severe problem with discriminating against fat people.
Yes, it’s been a shock to me too about doctors being one of the most fat-phobic groups. Seems like it should be the other way around since they actually study and/or see fat people and would know what they actually live through. But no. 😦
I really expected this article to do in a different direction based on the title. I’m pleasantly surprised that they made such a rational decision.
Hey, if this would mean that somebody like me in the EU could get a caster chair that didn’t slowly collapse with use, or a desk with a keyboard tray that allowed room for their legs, I’m all for it.
(Back when I was “just” “kinda big,” I was already “hard on furniture.” As if all people who sit in non-executive caster chairs and type on keyboards were petite and slender. Who makes these decisions anyway?)
My employer sends us to a local office supply store when in need of a chair. You can pick what you want within a very low cost limit. My chair is currently making unhappy noises. I am not looking forward to the conversation— You can spend a little more & buy a chair that is appropriate for my weight OR you can keep gambling with cheap crappy chairs & someday have a workmen’s comp claim when it dumps me on the floor, impaling me with the failed hydraulic cylinder. I’ve given up on getting them to take out the keyboard tray that I can’t use.
Please be sure to document -in writing-all your communications to management regarding your chair problems. That way, when you suffer injury due to chair failing, management can’t weasel out of this by claiming that they had no idea regarding the chair situation (“gee, had we known, we certainly would have taken steps to prevent this from happening…”).
This decision should definitely be applauded. The fact that it is controversial is very telling about the fat phobia in our society.
When a person weighs enough that it limits their activities, that is obviously the result of a complex amalgam of one of more of the following: genetics, environment, psychological factors, and previous, sometimes temporary disabilities (for instance, someone may put on weight while bed-bound after a car accident). Very few people choose to weigh enough that it adversely affects their health. It is not a matter of being “lazy.” It is not a choice. If it were, in our fatphobic society, very few people would be ‘overweight.’
Awesome article. People should know (As Ragen alluded to) that this decision is based on the “social model” of disability, which means that disability is seen as something created by society, rather than something “wrong” with the person. That is, if society was already constructed to accommodate everyone, then (theoretically) there would be no disability. For example, in a similar groundbreaking legal decision in Canada, it was held that airlines needed to provide extra seats to obese people who needed them, free of charge. This was based on disability, but not because there was anything inherently wrong with fat people. The person was considered “disabled” in that context because of the design of the plane itself. If the seats had been designed to accommodate everyone, then there would be no disability.
This reminds me…
There used to be a slogan in German disability activism, “we *are* not handicapped, we are *being* handicapped”. Which describes a lot of the issues making life hard for fat people quite well. The handicap is not fitting other people’s designs, be they seats or clothes or arbitrary numbers.
So, while things around us are designed only for *some* people, others are *getting* handicapped.
This was in the Washington Post the other day — it didn’t state the case nearly as well as you did, unfortunately. (And the comments section — yuck!)
http://www.washingtonpost.com/posteverything/wp/2014/12/18/obesity-is-a-disability-employers-should-start-treating-it-that-way/
The paragraph just under “JUST KIDDING” can be rephrased and the end result is an accurate description of life in 1930s Germany and 20th century USA.
People freaked out about how unfair it is for employers to have to make reasonable accommodations for qualified Jewish employees instead of just firing them or refusing to hire them in the first place, how being Jewish shouldn’t constitute a disability because it’s Jewish people’s own fault that they are disabled and they could convert to Christianity, and the always popular argument that this would promote Judaism (because apparently unemployment – and really, making Jewish people’s lives generally terrible – is the key to the future Coming of Christ.)
I’ve found this same argument made (not by the bigots, but by the critics) about hiring policies, about how if you hire 1 Jew then automatically someone else has to take more Sat. shifts to cover for them, and that if you hire Jews you may as well be closed on Sat.
For more information, check out: Sander L. Gilman, “Fat as Disability: The Case of the Jews,” Literature and Medicine 23.1 (2004): pg 46-60.
And: Thomas Sowell. Race and Culture: A World View. Basic Books, 1994.