Is Obesity a Disability under Australian Law?
Monday 30 June 2014 @ 1.10 p.m. | Legal Research
Recently (12 June 2014), the Court of Justice of the European Union (CJEU) began hearing the Danish reference of Kaltoft considering whether discrimination on the grounds of obesity is contrary to EU law. In particular, can obesity be deemed to be a handicap covered by the relevant Council Directives in place. It seems a timely reminder to look at our own Australian laws and whether obesity is actually considered discrimination under Australian law.
Disability Discrimination under Australian Law
There are two laws that make disability discrimination unlawful in Australia.
Federal Law
The Disability Discrimination Act 1992 (CTH) is the Federal Act, which applies everywhere in Australia. It is administered by the Australian Human Rights Commission and defines disability discrimination as:
"disability, in relation to a person, means:
(a) total or partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person's body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future (including because of a genetic predisposition to that disability); or
(k) is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability." (Section 4, Disability Discrimination Act 1992 (Cth))
State Law
State laws regarding disability include:
- Disability Services Act 1991 (ACT)
- Anti-Discrimination Act 1977 (NSW)
- Disability Services Act 2008 (NT)
- Anti-Discrimination Act 1991 (QLD)
- Disability Service Act 1993 (SA)
- Anti-Discrimination Act 1998 (TAS)
- Disability Act 2006 (VIC) and Equal Opportunity Act 1984 (VIC)
- Disability Services Act 1993 (WA)
Obesity as Discrimination
The laws in the State are quite varied in regards to definition of disability discrimination, and it seems, only one state, Victoria, has addressed the issue of obesity as discrimination. This is through legislation which addresses the issue of discrimination based upon 'physical features',' a term defined to mean a "person's height, weight, size or other bodily characteristicstics".
Andrew Lynch argues that although the definition in the Victorian Act does not stand out clearly as embracing obesity within its meaning, it is sufficiently broad enough to accommodate the physical effects of an obese condition.
The Equal Opportunity Board of Victoria, in considering one of the few obesity discrimination cases to arise in the Australian jurisdiction, in the case of Cox v The Public Transport Corporation (1992) EOC 792-401, held that obesity per se did not come within any of the alternative definitions of 'impairment' in the Equal Opportunity Act 1984 (VIC). However, the Board specifically stated that its decision did not mean that 'obesity of such an extent that it does lead to either a total or partial loss of part of the body or, indeed, a malfunction of a part of the body could not found a complaint'.
This statement has yet to be put to the test and, to date, no one has successfully made out a disability discrimination case based upon obesity in Australia.
Where it may become important in the future is for employers because in addition to having a duty of care to make reasonable adjustments for those who suffer from physical or mental impairments as a result of being obese, employers would be required to make adjustments where workers have difficulty carrying out normal day-to-day activities due to their size.
In practical terms, this could mean requests for adjustments to workers' jobs to minimise walking or working machinery or possibly seating arrangements. Such an outcome would also enable individuals who believe that they have been turned down for employment due to their obesity to claim unlawful discrimination on grounds of their disability.
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