Tag: Employment Discrimination

No Relief in Sight for NJ Employers: Six Newly-Enacted State Employment Laws to Tackle

On January 21, 2020, New Jersey Governor Phil Murphy signed five employee-friendly bills into law, including statutorily mandated requirements that increase penalties on employers that misclassify workers and obligate employers to pay severance to workers impacted by mass layoffs. Also, on December 19, 2019, the Governor signed the “Create a Respectful and Open Workplace for Natural Hair Act” (“CROWN Act”), which clarifies that discrimination based on hair textures and styles violates the New Jersey Law Against Discrimination (“LAD”).

In line with states like California and New York, the enactment of these new laws places New Jersey among a handful of states that provide markedly heightened protections for employees. The amalgamation of these new laws dramatically expands employee rights in the workplace.

Increased Employer Fines for Misclassification

Effective immediately, A.B. 5839 authorizes the state’s Department of Labor and Workforce Development to assess fines against employers for misclassifying workers. Under the new law, New Jersey employers or staffing agencies that misclassify workers may be issued up to a $250 fine per employee for the first violation and up to $1,000 per employee for subsequent violations. The amount of the penalty to be assessed will depend on such factors as the history of prior violations, the severity of the violation, the size of the employer’s business and the good faith of the employer. In addition, an employer found to have misclassified a worker may have to pay a fine to the misclassified worker of up to 5% of their gross earnings over the previous year.

New Employer Posting Requirement

Effective March 1, 2020, A.B. 5843 requires employers to post a conspicuous notice regarding employee misclassification. The New Jersey Department of Labor and Workforce Development will issue a form of notice, which will include a prohibition on misclassification, description of what constitutes worker misclassification, employee rights and remedies, and the process for reporting employer misclassifications.

In addition, the newly enacted statute prohibits employer retaliation against workers who make complaints about potential unlawful employee misclassifications. Employer retaliation carries a fine of $100 to $1,000 for each offense, and employees found to be terminated in retaliation for such protected conduct are entitled to reinstatement in addition to back pay and legal fees.

Managers Potentially on the Hook

Effective immediately, A.B. 5840 amends New Jersey’s recently passed Wage Theft Act and provides that employers and labor contractors will be jointly and severally liable for state wage and hour law violations and tax law violations, including with respect to worker misclassifications. The law broadly provides that any person acting on “behalf of an employer,” including an owner, director, officer or manager of the employer, may be held liable as the employer.

Business Shutdowns for Violations

Effective immediately, A.B. 5838 permits state regulators to issue “stop-work orders” upon seven days’ advance notice to sites where employers are found to have violated state wage, benefits, or tax laws, subjecting employers to a steep penalty of $5,000 per day against an employer for each day that it conducts business operations that are in violation of the stop-work order.

The law gives the state’s Commissioner of Labor and Workforce Development the authority to issue stop-work orders requiring cessation of all business operations at the specific place of business where any wage, benefit, or employment tax law violation is found. Employers subject to a stop-work order will have 72 hours following receipt of the order to exercise their right to make a written appeal to contest the stop-work order. Importantly, while employers may appeal the finding, that process may take weeks, risking potentially large losses for the implicated business.

Severance for Mass Layoffs

Effective July 19, 2020, S.B. 3170 dramatically amends the New Jersey state WARN Act in several significant respects. In the event of a covered mass layoff or termination or transfer of operations, the amendment increases the advance notice required to affected employees from 60 days to 90 days. New Jersey was previously aligned with the federal WARN Act which requires 60 days in advance of certain mass layoffs or plant closings. With respect to the length of notice now required in New Jersey, the new 90- day prior notice period mirrors New York State’s advance notice requirement, though threshold standards defining when notice must be given under these statutes differ. Upon the effective date, New Jersey employers now will need to consider two different statutory schemes to determine to what extent advance notice is required.

The amendment requires covered employers to provide severance pay to employees when there is a mass layoff or termination/transfer or operations impacting at least 50 full-time workers laid off in a 30-day period. Under the statute, severance is calculated at one week’s pay for each full year the worker has been employed and is required even when the requisite notice has been provided. In addition, when an employer fails to meet its advance notice mandate, the new law requires employers to give affected employees an additional four weeks of severance pay. In contrast, severance is currently a penalty for non-compliance with the New Jersey WARN Act.

Further, the required severance must be paid to the affected employee at the same time as the final paycheck. The severance cannot be used as consideration to negotiate a general release of claims from the terminated employee. Employers can, however, obtain a release of claims where additional consideration is offered to the impacted employee for that specific purpose.

The Crown Act

S.B. 3945 amends the LAD to clarify that race discrimination includes discrimination on the basis of “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” Governor Murphy enacted the CROWN Act exactly one year after an incident involving an African-American high school wrestler who was forced to cut off his locks in order to compete in a match. The wrestling incident prompted the introduction of S.B. 3945 and garnered widespread media attention. We reported on the CROWN Act in detail in our October 2019 alert. Effective immediately, the CROWN Act codifies guidance issued by the New Jersey’s Division on Civil Rights (DCR) stating that the DCR considered “hairstyles closely associated with Black people,” such as “twists, braids, cornrows, Afros, locks, Bantu knots, and fades” to be included in the definition of racial characteristics protected under the LAD.

New Jersey has become the third state to ban discrimination based on natural hair and hairstyles, following New York (effective on July 12, 2019) and California (effective on January 1, 2020). The New York City Commission on Human Rights issued similar guidance in February 2019 that clarifies that the New York City Human Rights Law includes discrimination based on natural hair and hairstyles as a form of race discrimination. Several other states and municipalities have similar legislation pending. Also, Senator Cory Booker introduced federal legislation on December 5, 2019 that would ban discrimination based on hair textures and hairstyles that are commonly associated with a particular race or national origin, and Representative Cedric Richmond introduced companion legislation in the House of Representatives.

Takeaways:

New Jersey continues to take steps to dramatically increase employee rights in the workplace. New Jersey employers should take appropriate measures now to ensure that (i) owners, directors, officers, managers, and others involved in the process of classifying workers are mindful of the new employee classification requirements for businesses and their potential exposure based on individual liability for misclassifications, (ii) their businesses are compliant with new posting requirements regarding New Jersey’s recently passed employee misclassification laws, and (iii) managers and supervisors are trained on the new retaliation protections afforded employees who report alleged violations concerning employee misclassification.

New Jersey employers also should review their grooming policies to determine whether they discourage natural hairstyles and hair textures, and determine whether any policies pertaining to appearance or aesthetics implicate any other proxies to race. With similar laws in other states, like New York, and pending elsewhere, employers across the nation should review their policies regarding grooming, appearance and aesthetics.

Lastly, the amendments to the New Jersey WARN Act will require careful analysis to determine an employer’s obligations and to minimize risks in connection with a mass layoff or transfer/termination of operations. The new severance obligations undoubtedly will impose substantial financial burdens on employers who have made the decision to reduce costs and/or operations.

© Copyright 2020 Sills Cummis & Gross P.C.

For more on employment laws in New Jersey and elsewhere, see the National Law Review Labor & Employment law page.

“OK, Boomer!”: Not Okay In the Office

As recently highlighted by the New York Times, a new phrase emblematic of the real or perceived “War Between the Generations” has gone viral: “OK, Boomer!”  The phrase, popularized on the Internet and, in particular, Twitter by Generation Z and Millennials, has been used to dismiss baby boomers’ thoughts and opinions, sometimes viewed by younger generations as paternalistic or just out of step.

And, the phrase isn’t just living in Twitter feeds and the comments sections of opinion pieces.  There is “OK, Boomer!” merchandise and, just last week, a 25 year-old member of the New Zealand Parliament used the phrase to dismiss a fellow lawmaker’s perceived heckling during a debate about climate change.

While many may find “OK, Boomer!” a harmless way to point out generational differences, the phrase’s popularity could lead to problems once it creeps into the workplace.  Age (over 40) is a protected category under both California law (i.e., the Fair Employment and Housing Act) and federal law (i.e., the Age Discrimination in Employment Act).  Whether the speaker is well-intentioned or not, dismissive attitudes about older workers could form the basis of claims for discrimination and/or harassment.  And, as one radio host recently opined, the phrase “OK, Boomer!” may be regarded by some as an outright slur.

Generation Z and Millennial employees understand that using derogatory or dismissive comments related to gender, race, religion, national origin, disability and sexual orientation are inappropriate.  Yet, for some reason, some may not have made the leap with regard to insidious/disparaging comments about a co-worker’s age.  Given the prevalence of age discrimination lawsuits, employers should take heed and consider reminding their workforce about the impropriety of this and other age-related phrases, and train their employees to leave the generation wars at the door.

© 2019 Proskauer Rose LLP.

For more on employment discrimination see the National Law Review Labor & Employment law page.

Employee Wins Federal Appeal Involving Commonly-used Defenses in Employment Discrimination Cases

The U.S. Court of Appeals for the Fourth Circuit issued a decision (Haynes v. Waste Connections, Inc.) this week that reversed in the employee’s favor.  The opinion tackles many commonly-used defenses by employers in employment discrimination and retaliation cases.  In particular, the Fourth Circuit analyzed whether:

  • the employee had identified a valid comparator (aka a similarly situated employee);
  • established that he was performing his job satisfactorily when the employer fired him; and
  • produced any evidence of pretext, which looks to whether the employee can show that the employer’s stated reason for the adverse employment action (termination, demotion, etc.) was meant to disguise a discriminatory intent.

Ultimately, the court found in favor of the employee and sent the case back down to the trial court.

Background

Jimmy Haynes, who is African-American, claimed that his former employer, Waste Connections, Inc. (WCI), discriminated and retaliated against him when it fired him.  Haynes alleged that WCI violated Title VII of the 1964 Civil Rights Act and 42 U.S.C. §1981 (Section 1981) as a result.  Notably, while Title VII and Section 1981 have many similarities in terms of prohibiting race discrimination in employment, a number of significant differences exist that can impact how a court reviews these claims, as discussed here.

The key facts had to do with Haynes reporting to work one evening and then leaving the job site.  According to Haynes, he left work due to a stomach virus and told his supervisor about this.  WCI, on the other hand, claimed that Haynes walked off the job because he was frustrated that his normal truck was not ready.  Two days later, WCI fired Haynes for job abandonment.  WCI did not mention any other reason for terminating Haynes’ employment at the time.  During the course of his lawsuit though, WCI claimed that Haynes had also committed other violations during June and August 2015.

After Haynes filed his lawsuit in court and the parties exchanged information during the discovery process, WCI filed a motion for summary judgment arguing that no disputed material facts existed and thus a jury trial was unnecessary.  The trial court granted summary judgment to the WCI and dismissed Haynes’ lawsuit.  Haynes then appealed this decision and the appellate court reversed the trial court’s decision.

The Fourth Circuit’s findings

Valid comparator/similarly situated employee

The Fourth Circuit first analyzed whether Haynes had established a proper comparator who was not African-American and was treated better than him.  Noting that comparing similar employees will never involve exactly the same offenses occurring over the same time period with the same set of facts, the court explained that showing someone is a valid comparator involves:

  • evidence that the employee and the comparator dealt with the same supervisor;
  • were subject to the same standards; and
  • engaged in the same conduct without such differentiating circumstances that would distinguish their conduct or the employer’s treatment of them

Haynes v. Waste Connections, Inc., Case No. 17-2431 at p. 8, (4th Cir. April 23, 2019).  The appellate court found that a white employee, who had the same supervisor as Haynes, had several workplace violations.  These violations included twice using a cellphone while driving, driving while distracted, and responding to a traffic situation late.  Id.  It also appeared that this white employee had yelled at the supervisor before quitting his job.  Yet the white employee was allowed to return to work and Haynes, who had not yelled at his supervisor and had fewer infractions, was fired.

Because both employees had the same supervisor, were subject to the same standards, and engaged in similar conduct, the court found the white employee to be a valid comparator.  In making this decision, the appellate court rejected WCI’s argument that the white employee’s infractions did not cause any damages whereas Haynes’ violations did.  It also turned away WCI’s claim that the white employee had notified the employer that he was resigning while Haynes simply walked off the job.

Was Haynes performing his job satisfactorily

WCI also argued that Haynes had not demonstrated that he was performing his job satisfactorily at the time WCI fired him.  The Fourth Circuit pointed out that Haynes was not required “to show that he was a perfect or model employee;” rather, he need only show that he was qualified for the position and meeting WCI’s legitimate expectations.  To support his contention that he was satisfactorily performing his job, Haynes produced evidence that:

  • his supervisor told him the month before Haynes was terminated that “everything looks good” and “nothing to worry about” in terms of his upcoming job performance evaluation; and
  • Haynes received bonuses during the relevant time period

The court thus ruled that Haynes had presented enough evidence to demonstrate satisfactory job performance.

Evidence of pretext

To show pretext, “a plaintiff may show that an employer’s proffered non-discriminatory reasons for the termination are inconsistent over time, false, or based on mistakes of fact.”  Haynes, Case No. 17-2431 at 12.  If the employee does so, then summary judgment should be denied and the case should proceed to trial.

The most important factor to the Fourth Circuit was that WCI came up with a new reason why it claims it terminated Haynes’ employment:  his poor attitude.  The only reason given at the time of Haynes’ termination, however, was job abandonment.  Further, the company policy on job abandonment defines it as three days with no call or no show, yet Haynes had called and texted within one day.  Ultimately, the Fourth Circuit found too many inconsistencies with WCI’s purported reasons for firing Haynes and thus ordered that a jury should decide whose version is correct.

Key takeaways

Some important factors can be gleaned from the Fourth Circuit’s decision here:

  • For the comparator/similarly situated analysis, you’re more likely to meet this test if you and the other employee(s) you’re comparing yourself to:
    • share the same supervisor;
    • perform very similar job tasks and responsibilities (both the number and weight) as the other person;
    • if the case involves discipline, then the number and severity of the infractions should be relatively similar;
    • have similar job performance evaluations and disciplinary history; and
    • your experience level (including supervisory experience) the same as the other person
  • To demonstrate that you were performing your job satisfactorily, evidence that you received bonuses, awards, and/or average (or higher) job performance ratings will be important;
  • Regarding pretext, the more inconsistencies you can show the employer’s reasons for firing you, the better off you will be.

© 2019 Zuckerman Law
This post was written by Eric Bachman of Zuckerman Law.

US Supreme Court Agrees to Decide Whether Title VII Prohibits LGBT Discrimination

After considering the petitions at eleven separate private conferences, on April 22, 2019, the U.S. Supreme Court granted certiorari in three cases involving the extent of protection provided by Title VII of the Civil Rights Act of 1964 – if any – against employment-based discrimination on the basis of sexual orientation and gender identity.  As we previously reported here, this issue has been watched closely by the nation, with multiple federal courts, government agencies, and employers reaching differing conclusions.  The Court consolidated the two sexual orientation cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, and allocated a total of one hour for oral argument for both cases.  In the gender identity case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission et al., the Court limited its consideration to only the question of whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).

The Court will hear argument in these cases next term, which means that it’s possible that a decision may not issue until as late as June 2020.  We will continue to update you with ongoing developments in these cases.

© Copyright 2019 Squire Patton Boggs (US) LLP

This post was written by Melissa Legault of Squire Patton Boggs (US) LLP.

Read more on the US Supreme Court on the National Law Review’s Litigation Type of law Page.

Is Obesity the Next Pivotal Employment Discrimination Issue Within the European Union?

Greenberg Traurig Law firm

Introduction

Obesity is one of the greatest health challenges worldwide. During the last decade, the population that is overweight in the European Union (EU) Member States has increased significantly, which has resulted in more than half of the EU population being overweight or obese.1  According to a recent study published in The Lancet, more than one-third of the population worldwide is overweight or obese, of which 36.9 percent are men and 38 percent are women.2  The aforementioned development has led to a growing discussion on how to deal with obese (severe overweight) employees in the workplace. That discussion includes the question whether obesity is a ground for unlawful discrimination.

In 2013, the European Court of Justice (ECJ) was asked in a preliminary ruling in a Danish case – for the first time – which provisions of EU law, if any, apply to discrimination based on obesity. The ruling of the ECJ is expected at the end of 2014. Meanwhile the Advocate General (AG) delivered his opinion on the matter on 17 July 2014.3  The AG’s opinion basically revolved around two questions:

  • can obesity be considered as a self-standing ground of unlawful discrimination under EU law?
  • does obesity fall within the scope of the notion of disability as referred to in the Equal Treatment Framework Directive (Directive)?4

The aforementioned Directive has the objective of creating a level playing field, where equality in employment and occupation in both the public and the private sectors are concerned.5  Based on recent case law, the ECJ appears to have adopted, following the approach of the UN Convention, a social and not a (purely) medical model of disability.6

In this respect, it is important to understand that the Directive provides for minimum rules to be implemented by EU Member States with regard to their national laws. Member States are free to implement and execute provisions more favorable than the Directive so long as they are in line with the Directive, specifically and and EU law, in general. As a result, there are a variety of laws in place in the respective EU Member States regarding this topic, among many others, in combination with general EU law.

Given these developments, the topic of obesity in the context of employment discrimination is receiving greater scrutiny, and thus, the Danish case being closely watched by the employment law community in Europe. Indeed, obesity might be the next frontier in employment discrimination law.

This article is intended to highlight the most relevant aspects of the Danish case. It is likely that some of the issues will seem surprising to readers in the United States, inasmuch as, since the 2008 amendments to the Americans with Disabilities Act, the Equal Employment Opportunity Commission and the courts have already begun to rule that severe or morbid obesity is a disability regardless of whether or not it was caused by a psychological disorder.7

Facts

An employee, Mr. Kaltoft, has been employed since 1996 as a childminder (taking care of other peoples´ children in their own homes) in the Municipality of Billund, Denmark. Mr. Kaltoft has been obese during the entirety of his employment. Although he performed his job to everyone’s satisfaction, he was dismissed in 2010. According to the notice of dismissal, the termination was due to a decline in the number of children to be taken care of.

The dismissal followed an internal hearing in which the obesity of Mr. Kaltoft was discussed. The parties disagree as to whether and if so, how, his obesity constituted part of the basis for the dismissal. Mr. Kaltoft argued that his employment was terminated due to his obesity, and that this amounted to discrimination based on obesity.

Obesity as a self-standing ground of unlawful discrimination?

Mr. Kaltoft basically argued that the open-ended nature of certain provisions in the European Charter of Human Rights (ECHR), Protocol 12 of the ECHR and the EU Charter of Fundamental Rights of the European Union (EU Charter) as well as other general EU law principles, requires the conclusion that any form of discrimination should be protected.

The AG disagrees. In his analysis, he asserts that EU legislation prohibiting discrimination addresses specific grounds of discrimination within specific subject areas without an existing general prohibition on discrimination. Thus, since obesity  is not specifically mentioned as a prohibited ground of discrimination in the EU treaties, nor in any EU legislation, it cannot be seen as a self-standing ground of unlawful discrimination. If at all, according to the AG, obesity discrimination could only be grounded on Article 21 of the EU Charter, which prohibits ‘discrimination based on any ground such as (…).’ On this particular wording (such as) it might be argued that there is a general principle of non-discrimination in EU law covering grounds of discrimination not explicitly mentioned in the Charter. In this respect, the AG refers to an ECJ ruling in a previous case where the ECJ ruled that the discrimination within the scope of Directive 2000/78 should not be extended by analogy beyond those grounds listed- exhaustively – in Article 1 of the Directive.8  Therefore, the AG concludes that there is no general principle of EU law prohibiting discrimination in the labor market that would cover discrimination on grounds of obesity as a self-standing ground of unlawful discrimination.

Disability under Directive 2000/78

According to Article 1 of the Directive, discrimination on the grounds of disability is prohibited. The term ‘disability’ is not defined by the Directive, but a ‘notion’ of disability is being developed via case-law.  This case-law is consistent with the concept of disability as laid down in Article 1 of the United Nations Convention on the Rights of Persons with Disabilities (U.N. Convention), which is an evolving concept, and the U.N. Convention’s case-law. The U.N. Convention has been approved by the EU in its Decision 2010/48 and as a result the provisions of the U.N. Convention are an integral part of the European Union legal order.9  This means that EU legislation, such as directives, have to be interpreted, as far as possible, in a manner that is consistent with the U.N. Convention.

According to the ECJ, this notion of disability must be understood as referring to a limitation which results, in particular, from (i) long-term (ii) physical, mental or psychological impairments (iii) which in interaction with various barriers (iv) may hinder (v) the full and effective participation of the person in professional life (vi) on an equal basis with other workers.10

As to the scope of the term “disability,” the ECJ has held that disability cannot be defined by reference to the source of the impairment, because that would run against the very aim of the Directive, which is to implement equal treatment.11  Therefore, the notion of disability does not depend on whether the disability is self-inflicted or not. Disability can also include an illness, if the illness entails a limitation as described in the foregoing paragraph.12  In this respect it should be noted that an illness requiring particular attention, continuous medication and control may be a psychological or psychosocial burden to the person concerned, but that in itself does not necessarily hinder participation on an equal basis in professional life in general.13  Moreover, the protected disability may even be that not of the employee, but of a person in the care of the employee who seeks to rely on the Directive.14  The latter situation is described as ‘associative discrimination.’

According to the AG, it is sufficient that a long term condition causes limitations in full and effective participation in professional life in general on equal terms with persons not having that condition.  No link has to be made between the specific work concerned and the disability in issue as a precondition to application of the Directive.

With regard to the Danish case at issue here, one should note that the Municipality of Billund argued that it cannot be contended that Mr. Kaltoft’s obesity entails a limitation that may hinder his full and effective participation in professional life on an equal basis with other workers because he had already worked for 15 years as a childminder with the Municipality, and had participated in professional life on an equal footing with other childminders in the Municipality’s employ.  In other words, the Municipality asserts, Mr. Kaltoft’s obesity cannot be deemed to have impeded his work as a childminder. On the other hand, in light of the AG’s position, as set forth above, an employee such as Mr. Kaltoft could assert that it does not matter whether he could carry on his work as a childminder before he asserts a claim under the Directive; rather, if the disability, here obesity, causes limitations on his ability to participate in professional life generally, he can assert a claim of disability discrimination pursuant to the Directive.  Further, the notion of disability must be understood as referring to a hindrance to the exercise of professional activity, not only the impossibility of exercising such activity.15

Does obesity amount to a disability?

In addressing the question of whether obesity amounts to a disability, the AG refers to the Body Mass Index (BMI) classification of the World Health Organization.16  According to that measurement, persons can be divided in three categories: Obese class I (BMI of 30.00-34.99), Obese class II (BMI of 35.00 to 39.99) and Obese class III (BMI over 40.00). The latter category is also called ‘morbid obesity.’17  Although obesity is classified as an illness by the WHO, as set out above, an illness does not per se amount to a ‘disability’ as described in the Directive.18  With these categories in mind, the AG is of the opinion that most probably only WHO class III obesity (referred to by the AG as severe obesity) will create limitations that amount to a disability under the Directive and only when the situation fulfils all of the criteria set out in the ECJ’s case-law on the notion of disability. It is for the national Court to verify whether this is the case with respect to Mr. Kaltoft.19

Will the outcome matter for the Netherlands and the other EU Member States?

The Netherlands

The Directive was implemented in the Netherlands via the Equal Treatment Handicapped and Chronically Ill People Act (Act). According to this Act, discrimination on the grounds of handicap or chronical illness is prohibited. The terms ‘handicap’ and ‘chronical illness’ are not defined in the Act, and review of the legislative documents suggests that this omission was intentional, so as to be consistent with the Directive, which does not provide for a definition of ‘disability.’ Having said this, a handicap is considered to be irreversible and a chronical disease a long-term affliction.

As to the Dutch legal practice, it seems that the Act and the practice developed in the Netherlands are not completely in line with the ‘notion of disability’ in the sense of the Directive. There are elements that point in the direction of a wider scope, but there are also elements that seem to be narrower. The first (that is, a more expansive view) would be, as discussed earlier, permissible, while the latter (a narrower construct) would not. As an example, there are cases that seem to take the underlying (medical) cause into the equation in assessing whether the situation falls within the scope of a handicap or a chronic disease, which would seem to provide for analysis based on the source of the impairment, which, as described above, runs counter to the aim of the Directive.

Severe obesity is being interpreted as a chronic disease under Dutch case-law, by the Netherlands Institute for Human Rights (NIHR) as well as by the few courts that have rendered rulings on this topic so far. They all (directly or indirectly) refer to the aforementioned WHO classification regarding obesity and conclude that because morbid obesity is regarded as a chronical disease by the WHO it also qualifies as a handicap or chronical disease under the Act.20  Having said this, whether the outcome of the Danish case before the ECJ will change current practice will have to be seen, and may well depend on specific wording. If the ECJ rules in line with the AG’s opinion, the Dutch practice with regard to morbid obesity will not be affected; however, if the ECJ goes further, the ruling could broaden the nature of the protection.

Elsewhere in the EU

As described above, the EU Member States all have their own national legislation and in case of ECJ developments in this area, each will need to assess whether or not they fulfil the obligations that arise from the Directive and its case-law. By way of example, in the UK ‘disability’ is one of the protected characteristics under the Equality Act. There has been case-law, which held that while obesity is not a disability in itself, it may lead to an impairment which, if it meets the ‘disability’ test, would amount to a disability. If the ECJ rules that obesity per se amounts to a disability under the Directive, the UK courts may have to interpret ‘disability’ as including obesity or consider whether any changes to legislation are required.

Practical considerations

Just to be clear, the Directive does not impose an obligation to maintain in employment an individual who is not competent to perform the essential functions of the position concerned, notwithstanding the obligation for the employer, as laid down in Article 5 of the Directive, to provide reasonable measures where needed in a particular case to enable a person with a disability to have access to, participate in, or advance in employment, unless such measures result in the imposition of a disproportionate burden on the employer.21  This also applies to impairments such as alcoholism and drug addiction where these conditions amount to an illness. An employer may expect employees suffering from obesity to take reasonable steps themselves to ensure that they carry out their work properly. If that is or might become a problem, both the employer and the employee should address this in a timely and adequate manner to improve the situation, which will be a joint responsibility. In this context, looking at EU case-law as it currently stands, it is advisable for employers to consider reasonable adjustments (e.g., ergonomics of the workplace) where obesity leads to an impairment having an impact on an individual’s ability to perform their job. Furthermore, employers may also want to ensure a safe environment, addressing (in)appropriate behaviors toward those who are obese, not only because harassment based on obesity may in the future qualify as discrimination on the grounds of a “disability,” but more importantly to ensure that the employees feel good about themselves and their working environment, which will enhance their commitment to their colleagues and their employer and hence will create better results for all involved. With the latter, and the previously cited statistics in mind, employers might want to consider creating a healthy working environment that goes further than the regular health and safety regulations by, for example providing for healthy (lunch) food, health club arrangements, awareness programs and well-being programs among their workforces.

ARTICLE BY

Jerrold F. Goldberg
Johan Nijmeijer
T.M.J. (Dorothé) Smits
OF
Greenberg Traurig, LLP

1 According to: Eurostat, Statistics Explained: Overweight and obesity – BMI statistics (data from November 2011)

2 Global, regional, and national prevalence of overweight and obesity in children and adults during 1980-2013: a systematic analysis for the Global Burden of Disease Study 2013, The Lancet, Vol. 384, Iss. 9945, pages 766 – 781 (http://dx.doi.org/10.1016/S0140-6736(14)60460-8).

3 Karsten Kaltoft v. Municipality of Billund, Opinion of Advocate General Jääskinen 17 July 2014, Case C-354/13.

4 Directive 2000/78/EC of 27 November 2000.

5 ECJ 17 July 2008, Case C-303/06 (Coleman), EU:C:2008:415, par. 38 and 47.

6 ECJ 18 March 2014, Case C-363/12 (Z), EU:C:2014:159, par. 83-85.

7 Federal district courts in Louisiana and Mississippi and the Montana Supreme Court had already held that severe obesity not based on a physiological disorder can be deemed a protected disability (see EEOC v. Resources for Human Development, Inc., 827 F. Supp. 2d 688 (E.D.La. 2011); Lowe v. American Eurocoptor, LLC, 2010 U.S. Dist. LEXIS 133345 (N.D. Miss. Dec. 16, 2010); Feit v. BNSF Ry. Co., Op. 11-0436 (Mont. July 6, 2012).

8 ECJ 11 July 2006, Case C-13/05 (Chacón Navas), EU:C2006:456, par. 56.

9 Council Decision of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (2010/48/EC).

10 ECJ 11 April 2013, Joined Cases C-335/11 and C-337/11 (HK Danmark), EU:C:2013:222, par. 38 and 39.

11 HK Danmark, par. 41.

12 Kaltoft, par. 58.

13 Z, par 79 and 80.

14 Coleman, par. 56.

15 Z, par. 159.

16 Kaltoft, par. 50.

17 http://apps.who.int/bmi/index.

18 HK Danmark, par. 44.

19 Kaltoft, par. 56 and 60.

20 See for example NIHR 13 May 2011, 2011-78 (regarding a hiring and selection process).

21 Chacón Navas, par. 49 and 50