McDuffy v Interstate Distributor Co (2005) H&FLR 2015-6


John McDuffy v Interstate Distributor Co (2005) H&FLR 2015-6

Multnomah County Circuit Court (Oregon)

5 October 2005

Coram: Not known

Appearing for the Plaintiff: Michael Ross (of Slater Ross)
Appearing for the Defendant: Alan Lee (of Bullard Law)

Catchwords: Oregon – truck driver – obesity – discrimination – compensation – quantum.

Facts: The plaintiff had worked as a commercial driver since 1987 and had been employed by the defendant since April 2003. He was classed as morbidly obese, being 6 feet tall and weighing 550 pounds (250 kilograms).

In May 2004 he was assigned to a truck which was smaller than usual and in which the steering mechanism could not be adjusted.  He was unable to fit in the cab and reported the problem, after which he was suspended from duty without pay.  In late May he was assigned a larger truck, but then again suspended pending medical clearance for work.  On examination by a doctor it was found that he was able to drive a truck and had only minor other limitations on his capacity to work. Despite this his suspension was not lifted.

The plaintiff brought proceedings against his employer for discrimination.  He tendered in evidence video footage of him performing his work duties.

Held: The jury upheld the plaintiff’s claim and awarded damages of $109,000.00.


The outcome was a jury finding and no written reasons are available.  The report prepared based on an account in the Seattle Times of 7 November 2005 and the Oregonian of 6 November 2005.

Trade & Labour Union v Local Gov’t Assoc’n (2014) H&FLR 2015-3

Trade & Labour Union v Local Government Association (2014) H&FLR 2015-3

European Court of Justice

18 December 2014

Coram: Bay Larsen P, Jürimäe, Malenovský, Safjan and Prechal JJ

Appearing for the Plaintiff: Jacob Sand (of Gorrissen Federspiel)
Appearing for the Defendant: Y. Frederiksen (instructors not known)
Appearing for the Danish Government: C. Thorning and M. Wolff (instructors not known)
Appearing for the European Commission: M. Clausen and D. Martin (instructors not known)

Catchwords: European Union – Denmark – employment law – dismissal – obesity – discrimination – disability.

Facts: Mr Karsten Kaltoft was employed from 1 November 1996 by the Municipality of Billund as a childminder, initially on a fixed term contract and subsequently on a permanent contract.  It is common ground that at all material times the plaintiff was obese within the definition promulgated by the World Health Organization.  In November 2010 the Municipality terminated Mr Kaltoft’s employment, asserting that this followed a reduction in the number of children requiring care.  Mr Kaltoft considered that his dismissal had been motivated by his obesity.  The plaintiff brought proceedings on his behalf against the defendant, which represented his employer.

The proceeding was based on Denmark’s Act Respecting Prohibition Against Discrimination on the Labour Market (No. 1349 of 2008), ¶2(1) and ¶7(1), which implements Articles 1 and 2 of European Council Directive 2000/78 prohibiting direct or indirect discrimination on grounds of “religion or belief, disability, age or sexual orientation”

The trial court stayed the proceedings and sought a preliminary ruling from the European Court of Justice as to whether (a) it was unlawful for a government employer to discriminate on the basis of obesity and (b) obesity can be deemed to be a disability and, if so, in what circumstances will that disability be protected from discrimination: Fag og Arbejde v Kommunernes Landsforening (Kolding District Court, 25 June 2013, unreported).

Held: referring the matter back to the trial court, that –

1. Neither Directive 2000/78 nor the Charter of Fundamental Rights of the European Union can be extended by analogy beyond the grounds of discrimination they identify.  Accordingly, European law does not include a general principle of non-discrimination in employment based on obesity.

Chacón Navas v Eurest Colectividades SA, EU:C:2006:456; Coleman v Law, C-303/06, EU:C:2008:415, followed
Åklagaren v Åkerberg Fransson, C-617/10, EU:C:2013:105, considered

2. ‘Disability’ in Directive 2000/78 refers to a limitation resulting from (inter alia) physical impairment which in combination with other barriers may hinder the worker’s participation in employment on an equal footing with other workers. Because obesity does not necessarily pose a limitation it is not in itself a disability (1).  However, should a worker’s obesity give rise to long-term limitations which may hinder their capacity to work on an equal footing with other workers, it will then constitute a disability pursuant to Directive 2000/78

HK Danmark v Dansk almennyttigt Boligselskab and Dansk Arbejdsgiverforening, EU:C:2013:222, Z v A Government department and Board of management of a community school, C-363/12, EU:C:2014:159; and Glatzel v Freistaat Bayern, C-356/12, EU:C:2014:350, considered.

3. It is not relevant to the scope of Directive 2000/78 whether or not a person has contributed to their own disability (2).

HK Danmark v Dansk almennyttigt Boligselskab and Dansk Arbejdsgiverforening, EU:C:2013:222, considered.


The Court’s judgement is available here.


(1) Cf McDuffy v Interstate Distributor Co. (Multnomah Co. Cir. Ct., 2005), Seattle Times, 7 November 2005.  In this case, a 550-pound truck driver claimed to have been wrongfully suspended from duty based on his weight.  He was awarded $109,000.00 after he successfully demonstrated to the court that, regardless of his weight, he was able to perform his duties with only minor limitations.

(2) The evidence indicates that Mr Kaltoft had been unable to sustain any significant weight loss: see ¶19. Conceivably the Court might have assessed this point differently if there were evidence that Mr Kaltoft’s weight was wholly self inflicted: Noting the discomfort which overweight children provoke in some people, it is possible that an argument that Mr Kaltoft was ‘modelling bad behaviours’ would have prompted the Court to formulate an exception on the basis that this would be in the best interests of the children (cf Sec’y of Dep’t of Health and Comm’ty Serv. v JWB and SMB 175 CLR 218 (Austl., 1992)).  Such a line of analysis would, however, present significant further legal problems as to what behaviours ought be modelled.  For example, should an obese carer be required to complete a marathon or train for an ironman competition?  This would raise intriguing questions in relation to autonomy and personal time: Cole v South Tweed Heads Rugby League Football Club Ltd, 217 CLR 469, 476-477 per Gleeson CJ (Austl.,2004); Young v Workers Compensation Appeals Board (2014) H&FLR 37.

Arch Insurance Co v United States Youth Soccer Association Inc (2014) H&FLR 2014-14

Arch Insurance Co v United States Youth Soccer Association Inc (2014) H&FLR 2014-14

Fifth District Court of Appeals of Texas

12 May 2014

Coram: Bridges, Fillmore and Lewis JJ

Appearing for the Appellant: William J. Akins and Bryan D. Pollard (both of FisherBroyles LLP)

Appearing for the Appellee: Richard Illmer and Elizabeth G. Bloch (both of Husch Blackwell LLP)

Catchwords: Texas – soccer – sports clubs – insurance – breach of contract – discrimination – duty to defend

Facts:  The United States Youth Soccer Association (respondent) was a corporation and a member of the United States Soccer Federation.  In 2009 the National Association of Competitive Soccer Clubs and some of its member clubs filed a grievance complaint with the US Soccer Federation alleging a number of breaches of Federation by-laws by (among others) the respondent.  These breaches included alleged discrimination.

At the relevant time, the respondent was insured by Arch Insurance Co (appellant).  The insurance policy included an exclusion exempting the appellant from liability for loss caused by a claim for breach of a contract or agreement.  The exclusion did not apply, however, so far as the respondent would have been liable for that loss absent the contract or agreement.  The appellant declined on the basis of the exclusion to defend the respondent.  The respondent sued for breach of contract, claiming the $365,620.24 legal fees it incurred in defending the grievance proceedings.  Both parties sought summary judgment, which was granted in favour of the respondent.  The appellant appealed.

Held: Allowing the appeal, that in assessing whether a claim is within the coverage of an insurance policy, the court must consider the factual allegations showing the origin of the damages, and not the legal theories alleged.  The factual allegations – including those with respect to discrimination – raised by the grievance against the respondent arose from the alleged breach of US Soccer Federation by-laws and regulations, and were within the exclusion.

Huffhines v State Farm Lloyds, 167 SW.3d   493 (Tex. App. 14th Dist 2005), followed.


The Court’s judgment is available here.

Whittaker v America’s Car-Mart Inc. (2014) H&FLR 2014-7

Whittaker v America’s Car-Mart Inc. (2014) H&FLR 2014-7

United States District Court (E.D. Missouri)

24 April 2014

Coram: Limbaugh DJ

Appearing for the Plaintiff: Mr Mark Welker of Jackson & Welker)

Appearing for the Defendant: Not identified.

Catchwords: Missouri – termination of employment – obesity – Americans with Disabilities Act – disability – discrimination

Facts: The plaintiff commenced employment with the defendant in August 2005.  He was dismissed from the position of General Manager on 1 November 2012.  He alleged that he was dismissed by reason of his severe obesity which he asserted was a disability within the meaning of the Americans with Disabilities Act 1990 (Act).  He did not require any special provision to be made by his employer in order to discharge his duties.

The defendant applied to dismiss the discrimination proceeding on the basis that severe obesity is not a disability under the Act unless it relate to an underlying physiological condition.

Held, dismissing the application,

(1) The Americans with Disabilities Amendments Act 2008 (Amending Act) requires “disability” to be construed in favour of broad coverage of claimants.

Toyota Manufacturing, Kentucky, Inc v Williams, 534 US 184 (2002), disapproved.

(2) Because of the expanded coverage effected by the Amending Act, it was open to argue that obesity can be a disability.

Lowe v American Eurocopter LLC, No. 1: 10CV24-AD (N.D. Miss. Dec. 16, 2010), followed.


The Court’s judgment is available here.