KEY POINTS:
There was recently some publicity about the decision of the UK Employment Tribunal that a bald teacher, who was subjected to taunts by his pupils, was not disabled, and could not therefore bring a disability discrimination claim.
Okay, fair enough - most of us would not regard baldness as a disability. Lots of other things are, but not (you would have thought) baldness.
But what about obesity? A recent Ministry of Health survey was picked up in the media, partly because it showed that as many as 27% of New Zealanders are obese, and more than a third of us are overweight. The rate of increase is slowing, but it's still significantly higher than in 1997, when according to media reports, it was 17% for men and 21% for women.
A few years ago, most people would have laughed you out of court for even suggesting that obesity could or should be regarded as a disability. The general attitude towards obese people was (and to an extent still is) that they are fat simply because they eat too much and are too lazy to exercise.
In reality, obesity results from a complex mix of biological, behavioural and environmental factors, and it is rarely as simple as saying, "it's their fault they're so fat". Perhaps more importantly as far as employment is concerned, whether someone is overweight has, or should have, no bearing on a wide range of jobs.
There are some jobs where being obese may fairly disqualify you, such as professional athlete. Even then, being "big" is an advantage in some sports. Many weightlifters, for instance, are of ample proportions. There may also be jobs which obese people could do, but only at significant cost to the employer in terms of special equipment or other support.
But for most jobs, being fat just isn't relevant. Take the practice of law. You don't have to be svelte to be able to analyse legislation, talk to clients or put your case in court. The same goes for a myriad of other jobs. And yet we all know that being fat is frowned upon by many. It's a bit like smoking - it can put you at a disadvantage socially if you're seen to be too big.
In the employment setting, overweight people may face bias from several sources. The US Obesity Society reports that studies have found that when a resume is accompanied by a picture of an overweight person (compared to an "average" weight person), the overweight applicant is rated more negatively and is less likely to be hired.
Other research shows that overweight employees are perceived as lazy, sloppy, less competent, lacking in self-discipline, disagreeable, less conscientious, and poor role models. In addition, overweight employees may suffer financially, as they tend to be paid less for the same jobs, are more likely to have lower paying jobs, and are less likely to get promoted than "normal" people with the same qualifications.
So, how can society address this problem? Or should it? Attitudes tend to change over time, and views that are regarded as normal by one generation can be seen as backward by the next.
However, often the law has a part to play in changing attitudes - for instance, there is no doubt that the legalisation of sex between gay men in 1986 helped to change social attitudes to homosexuality. Perhaps changing the law to add obesity as a ground of unlawful discrimination is an option.
A more cautious approach would be to leave it to the courts. After all, obesity could in some cases be a disability, which of course is already covered by the discrimination legislation. In the US, obesity is increasingly the subject of disability discrimination claims.
US lawyers Tydings and Rosenberg LLP report that although courts initially were reluctant to recognise obesity as a disability, that is changing.
The Federal Court has accepted that morbid obesity can be a disability, particularly if caused by a physiological disorder. A Pennsylvania court awarded damages to a fired employee when he was able to show that his former manager had made derogatory comments about his weight. And a Texas decision found that a bus company had improperly decided not to hire an obese woman as a driver, because the company could not demonstrate that her obesity would prevent her from performing the functions of the job.
It remains to be seen whether the courts in New Zealand will take a similar line, or indeed whether there will even be any claims relating to obesity. There is not a significant amount of discrimination litigation here, and a person dismissed or ill-treated purely because of obesity is probably more likely to claim unjustified dismissal or that they were unjustifiably disadvantaged.
Such a claim would likely succeed, unless the employer could show that the person's obesity meant they could not do the job properly. Some jobs may fall into that category, but not many.
Greg Cain
Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.
