I want to wish everyone a happy holiday, whether it be Hanukkah or Christmas or another holiday being celebrated this season. In keeping with the international spirit of the season, I thought I would focus this blog entry on international law.

Starting in the first edition of my book and continuing in all the subsequent editions, I have talked about how the ADA would play out with respect to the obese football referee. When I did a search of obesity in my blog, it doesn’t seem that I have talked about the subject before. With the decision from the European Court of Justice last week dealing with the case of an obese employee fired by his employer, I thought it would be time to revisit the issue. With respect to the Rehabilitation Act, we have known for some time, since 1993, that morbid obesity is a disability under the Rehabilitation Act. See Cook v. State of Rhode Island. Cases interpreting the ADA have followed these cases in a way. That is, they do find that morbid obesity is a disability, but that doesn’t really answer the question because is it sufficient for obesity to be the physical or mental impairment or must there be an underlying condition? On that, cases are all over the place. Also, in June 2013, the American Medical Association came out with the view that obesity is a disease. When that came out, there was much discussion about the impact of that determination with respect to whether obesity was a disability under the ADA. See for example this blog entry by Eric Meyer.

All this came to mind when I saw a news coverage of a case from the European Court of Justice involving a home healthcare worker alleging that his rights under the United Nations Convention on the Rights of Persons with Disabilities, which was ratified by the European Union, was violated when his employer terminated his employment as a result of his being obese. I have categories as always with respect to this blog entry. However, my categories are quite a bit different this time around. They are: Facts of the European Union case; issues before the European Union Court of Justice; its holdings; the reasoning of the European Court of Justice; American translation of the decision; similarities to the United States; United nation Convention on the Rights of Persons with Disabilities; and why it is so significant that several sections of United nation convention on the rights of persons with disabilities require legislation by the ratifying state.

European Union case
I
Facts:

The Municipality of Billund, one of the Danish public administrative authorities, hired the plaintiff in 1996 on a fixed term contract, as a childminder (we would call it a home healthcare worker), to take care of children in his home. He performed that function for approximately 15 years. During that entire time, he was obese within the meaning of the definition of the World Health Organization. The plaintiff made attempt to lose weight and his employer as part of its health policy provided financial assistance between January 2008 and January 2009 in order for him to attend fitness and physical training sessions. The plaintiff did lose the weight but he subsequently regained it (losing weight and regaining it is very typical for people who have obesity). In March 2010, the plaintiff resumed his work as a childminder after having taken leave of one year due to family reasons. He then received several unexpected visits from the head of the childminders inquiring into his weight loss. They observed that his weight had remained virtually unchanged. Owing to a decrease in the number of children in the municipality, a reduction in force was in order. The municipality decided to terminate the plaintiff. He was the only childminder to be dismissed. At the termination meeting, the plaintiff’s obesity was mentioned, though the parties disagree over how his obesity was mentioned during the meeting and the extent to which it may have been a factor in the decision-making process leading to his termination. Subsequently, the municipality did issue a letter basically saying that he was subject to a reduction in force. The plaintiff believing his obesity was a reason for the reduction in force brought suit alleging that he had been discriminated on the basis of obesity and he should receive compensation for that discrimination.

II
Issues

1. Is obesity per se protected by any law in the European Union?

2. If the answer is no, is obesity a disability under the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community on November 26, 2009?

III
Holdings

1. No

2. Obesity can be a disability under certain circumstances.

IV
Reasoning of the European Court of Justice

1. No provision of European law prohibits discrimination on the grounds of obesity.

2. Prior case law of the European Union has held, that the concept of disability refers to a limitation resulting from a long-term physical, mental, psychological impairment that in interaction with various barriers hinders the full and effective participation of the person concerned in professional life on an equal basis with other workers.

3. The concept of disability refers not only to the impossibility of exercising a professional activity but also to the hindrance of the exercise of such an activity.

4. How the disability comes into effect and whether he or she contributed to the disability has no bearing on whether a person has a disability.

5. Whether a person is accommodated or not is also not relevant to whether the person has a disability.

6. A disability would exist if the obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility, or the onset in that person of a medical condition preventing him from carrying out his work or causing discomfort when carrying out his professional activity.

7. If the plaintiff can show that he has a disability as set out in this opinion, then under European Union law disability discrimination is presumed. Then, it is up to the respondent to prove that there was no disability discrimination.

8. It is for the national court to decide whether the plaintiff had a disability.

V
American Translation of Decision

1. Under European Union law, obesity may be a disability but not by itself. There has to be an underlying factor involved.

2. The definition of disability under the United Nations convention on the rights of persons with disabilities as interpreted by the European Union is a different one than the definition of disability under the ADA/Rehabilitation Act.

3. How a disability occurs and whether that disability is accommodated have nothing to do with whether the person has a disability.

4. Once a person makes out a case for discrimination based upon obesity, the burden of proof switches to the employer per European Union law.

VI
Similarities to U.S.

1. As mentioned earlier, there is plenty of case law saying that obesity by itself is not sufficient to be considered a disability. That is, there has to be an underlying factor.

2. The reference to once a case for discrimination based upon obesity is set forth then the burden of proof switches to the defendant, sounds remarkably similar to McDonnell Douglas and motivating factor.

VII

United Nations Convention On Rights of Persons with Disabilities

1. The United Nations Convention on Rights of Persons with Disabilities does contain a definition of disability discrimination, but does not contain a definition of what is a disability.

2. The United Nations Convention on Rights of Persons with Disabilities also uses the term reasonable accommodations but not in the same way that we are familiar with it with respect to the ADA/Rehabilitation Act.

3. Several sections of the United Nations Convention on Rights of Persons with Disabilities specifically require legislation by the nation state to effectuate the provisions of the convention. In particular, legislation is required for: article 4 (general obligations); article 7 (children with disabilities); article 9 (accessibility); article 16 (freedom from exploitation, violence and abuse); and article 27 (work and employment).

VIII

Why Is It so Significant That Several Sections of the United Nations Convention on Rights of Persons with Disabilities Require Legislation by the Ratifying State?

1. The reason it is terribly significant as to whether legislation is required to implement the treaty has to do with whether the treaty is self-executing or not. Under American jurisprudence, if the treaty is self-executing (does not require legislation to implement), then the treaty becomes the supreme law of the land under the United States Constitution. If the treaty is not self-executing (does require legislation to implement), then existing law stays the same (i.e. the treaty would be judicially unenforceable). For an excellent law review article discussing self-executing versus not self-executing treaties, see this article. The concept of self-executing versus not self-executing is not an easy one understand and that may be, as alluded to by the aforementioned law review article, because the courts haven’t been always clear that they are talking about different concepts but using the same terminology. At any rate, this law review article says that there are four possibilities as to why a treaty would not be self-executing. First, a treaty may be judicially unenforceable because the parties, or perhaps the US treaty makers unilaterally, make it judicially unenforceable. Second, a treaty might be judicially unenforceable because the obligation it imposes is of the type that under our system of separation of powers cannot be enforced directly by the courts. Third, a treaty might be judicially unenforceable because the treaty makers lack the constitutional power to accomplish by a treaty what they desire to accomplish. Finally, the treaty might be judicially unenforceable because it does not establish a private right of action and there is no other legal basis for the remedy being sought by the party relying on the treaty.

With respect to the first possibility, the law review article makes clear that it isn’t unusual for various people (treaty negotiators, president, or even the Senate) to make it clear that the treaty is not self-executing (which is the case in this instance as indicated below). With respect to the second principle, it is hard to believe that this treaty could be judicially unenforceable because it is not the kind of obligation that can be enforced directly by the courts since we already have the ADA/Rehabilitation Act. With respect to the third possibility, this would take some further research on my part as I am not exactly sure what is being driven at here. Offhand, it wouldn’t seem to fit the situation, but further research would be needed. Finally, as seen in the European Union case, the convention is most certainly establishing a private right of action and so the fourth factor would not apply. Since the factors seem to cut both ways, it would do well for those who want to be sure that this treaty is not self-executing and therefore does not override existing United States law, to explicitly specify, and indeed they have done so, that the treaty is not self-executing if future problems are to be prevented.

Finally, please note that the opinions contained herein are my own and do not necessarily represent any organizations that I am a part of or any clients that I may represent. It would be for those organizations and clients to make their own determination.