Advocate General: Obesity can qualify as a disability

15 September 2014

In a case referred by the Danish courts, the European Court of Justice (ECJ) has been asked to decide whether obesity can be considered a "disability" and therefore covered by the prohibition on discrimination in the equal treatment framework directive 2000/78/EC (the Directive). On 17 July 2014, the Advocate General gave his opinion on the questions asked in the case. His conclusion was that obesity could qualify as a disability, but only where it is severe and the criteria set out in ECJ case law are met.

Background

On 22 November 2010, Mr Kaltoft, a childminder in the Municipality of Billund, Denmark had his contract terminated. According to the Municipality, the dismissal was due to a decline in the number of children requiring care. Mr Kaltoft, however, claimed that he was dismissed due to his obesity and that this amounted to discrimination on the grounds of disability.

Mr Kaltoft weighed 160kg and was 1.72m tall and had been obese, as defined by the World Health Organisation (WHO), during the whole period of his employment since 1996.

Mr Kaltoft based his case on two key arguments: (i) that obesity falls within a general prohibition in EU law covering all forms of discrimination in the labour market; and (ii) that obesity is a form of ‘disability’.

Is there a general prohibition in EU law on all forms of discrimination that includes obesity?

On the first point, the Advocate General stated that, as a rule, there is no general prohibition in EU law against discrimination due to obesity.

The Advocate General then considered if such a prohibition could be based on the EU Charter Provision on Non-discrimination. This charter is open-ended in that it prohibits "discrimination based on any ground such as […]". However, the Treaty on the Functioning of the EU expressly precludes recourse to the Charter to extend "in any way the competences of the European Union as defined in the Treaties". On this basis, the Advocate General confirmed that the Charter cannot create a general prohibition against discrimination due to obesity. He also confirmed that this could not be established pursuant to the Convention for the Protection of Human Rights and Fundamental Freedoms either.

Finally, the Advocate General stated that even though the ECJ has held that EU fundamental rights law encompasses the general principle of non-discrimination which binds Member States, it does not follow that the scope of the Directive should be extended by analogy beyond the grounds that are exhaustively listed in the Directive itself.

Is obesity a form of disability?

In response to Mr Kaltoft's second point, the Advocate General investigated the scope of the concept of "disability" under the Directive.

As the Directive itself does not define disability, the Advocate General defined the concept according to the ECJ's case law. On this basis, the concept of "disability" must be understood as referring to limitations which result, in particular, from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person in professional life on an equal basis with other workers.

The fact that Mr Kaltoft had been obese during the whole 15-year period of his employment did not, according to the Advocate General, eliminate the possibility that obesity could be considered a "disability". What is decisive is the "obstacles" a person encounters in their professional life that render the carrying out of that job objectively more difficult and demanding. The Advocate General therefore stated that 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".

The Advocate General considered the WHO's three classes of obesity and stated that it is most probably only class III (severe, extreme or morbid obesity (BMI>40,)) that will create limitations, such as problems in mobility, endurance and mood, and therefore amount to a "disability" for the purposes of the Directive.

Furthermore, the Advocate General stated that it is irrelevant how the person became obese: whether simply due to excessive calorie intake or whether it can be explained by reference to a psychological or metabolic problem or as a side-effect of medication.

In conclusion, the Advocate General's view was that obesity could amount to a disability pursuant to the Directive but only when it is severe and fulfils all the criteria set out on the ECJ's case law on the concept of disability.

Bird & Bird's comments

It is important to point out that this is only the Advocate General's opinion on the case. These findings cannot therefore be seen as existing law until the ECJ has made a ruling. Nonetheless, the opinion gives a suggestion of the ECJ's possible answer to the questions posed by this case and a potential expansion of the concept of disability.

In the Advocate General's opinion, the assessment of whether or not obesity is a disability has two aspects. On one hand it involves a medical assessment of how severe the person's obesity is. On the other it involves a social assessment of the extent to which the obesity limits the person's full and effective participation in professional life, compared to those without the condition.

Medical evidence indicates that obesity is an increasing problem across Europe. An expansion of the concept of disability in the Directive on equal treatment would also mean an expansion of the national laws which have implemented it. This will in turn impact the obligations on employers across Europe, including the duty to make reasonable adjustments.

Bird & Bird will of course follow this case closely and provide an update when the ECJ delivers its final ruling.

Case: FOA, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund C-354/13

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