The European Court of Justice (ECJ) has been forwarded the questions on whether or not there is a general prohibition in EU law on all forms of discrimination that includes obesity, and furthermore if obesity can be considered as a "disability" and therefore protected by the Directive on equal treatment in employment and occupation.[1] On 18 December 2014 the ECJ gave its decision in case C-354/13.

Background

On 22 November 2010, a childminder in the Municipality of Billund was dismissed. The Municipality cited that the reason for the dismissal was due to a decline in the number of children. The childminder however claimed that he was dimissed due to his obesity, and that this amounted to discrimination on grounds of disability.

The childminder had been employed since 1996, was 1.72 metres tall, and stated that he at no time during that period weighed less than 160 kg. Therefore, the childminder had been obese in the whole period of employment.

On 17 July 2014, the Advocate General gave his opinion to the questions in the case.

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

With this decision, the ECJ states that the EU-law must be interpreted in the way that there does not exist a general prohibition in EU law against discrimination due to obesity.

ECJ states that: "According to the case-law of the Court, the scope of Directive 2000/78 should not be extended by analogy beyond the discrimination based on the grounds listed exhaustively in Article 1 thereof (…). Consequently, obesity cannot as such be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination".

Furthermore, the ECJ rejects that the provisions of the Charter of Fundamental Rights of the European Union are likewise applicable in such a situation.

In other words, the Directive 2000/78 does not provide obese persons a special job protection as the ECJ rejects that obesity in itself is protected in equal terms as gender, religion, race etc.

Obesity can under special circumstances be a disability

However, when answering the last question, the ECJ states that severe obesity under special circumstances can be a disability and thus fall within the concept of disability.

First, the ECJ defined the concept according to the ECJ's case law, as the Directive on equal treatment in employment and occupation does not define the concept of disability. The notion of "disability" must be understood as referring to limitations which result, 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 on professional life (vi) on an equal basis with other workers.

The concept of "disability" must be understood as referring not only to the impossibility of exercising a professional activity, but also to a hindrance to the exercise of such an activity. Furthermore, the concept does not depend on the extent to which the person may or may not have contributed to the onset of the disability – in this case the onset of the obesity.

The ECJ underlines that obesity does not in itself constitute a "disability" within the meaning of Directive 2000/78, on the grounds that, by its nature, it does not necessarily entail the existence of a limitation as referred to above.

However, in the event that, under given circumstances, the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, obesity can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78.

In other words, it would not be the obesity in itself which constitutes a disability but the obesity may be the origin of other conditions and reduced mobility which prevent the worker from carrying out his/her work or causing discomfort when carrying out his/her professional activity.

Bird & Birds comments:

The ECJ states that, as a rule, there is not a general prohibition in EU law against discrimination due to obesity. This is good news for employers.

However, with this decision, the ECJ (once again) extends the concept of "disability", even though the ECJ set high demands to when obesity can be a disability in accordance with the Directive. This may challenge employers with workers who are or will go into the category of "severe obesity" since the employer in such cases is required to adjust the job functions to the obese – however within reason.

The decision is not a big surprise since the ECJ in earlier cases has stated that normal sickness may lead to a disability for which reason it is natural that the same is the case with obesity.

Finally, is it noted that the ECJ follows the Advocate General's proposal which was expected.