Could employees claim discrimination based on their weight?

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Whether obesity could be classified as a ‘disability’ and, therefore, a prohibited grounds of workplace discrimination was tested in a recent case that went before a UK employment court, Walker v Sita Information Networking Computing Ltd. In that case the appellant, Walker, was held to have a disability, despite the fact that there was no discernible physical or mental cause of his various impairments – except that obesity was a contributing factor.

“In their view, the purpose of the relevant legislative definition of ‘disability’ was not confined to a physical or mental condition, but could include a description of the nature of the impairment,” Catherine Stewart, employment law barrister, said.

Around one quarter of adults in New Zealand are classified as obese, according to the Ministry of Health, meaning that the legal ramifications of the condition should be of interest to employers. Here, an unlawful discrimination in employment is one that involves one of the ‘prohibited grounds’ set out in the Employment Relations Act 2000 and the Human Rights Act 1993. While obesity is not specifically mentioned, ‘disability’ is.

In both pieces of legislation, a disability is defined as a:
 

  • physical disability or impairment;
  • physical illness;
  • psychiatric illness;
  • intellectual or psychological disability or impairment:
  • any other loss or abnormality of psychological, physiological, or anatomical structure or function;
  • reliance on a guide dog, wheelchair, or other remedial means;
  • the presence in the body of organisms capable of causing illness.

Obesity alone is unlikely to be classified as a disability, although it may play a significant part in causing one, according to Stewart. The law has not yet been tested here, but Stewart suggested that the definition of ‘disability’ in New Zealand law has more to do with causes than effects. “If this is correct, then an employee bringing a discrimination claim would first need to establish that the disability is caused by some physical, mental, anatomical or other factor referred to in the definition,” she said.

“However, it is also possible to conceive of a situation where a person’s obesity is of such a nature that it leads to an actual illness or impairment, for example: diabetes or loss or malfunction of a part of the body,” Stewart added.

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