Advocate General Niilo Jääskinen of the EU Court of Justice has issued an opinion in the case of a morbidly obese child-minder in Denmark who lost his job, allegedly due to unlawful discrimination, finding that “if obesity has reached such a degree that it plainly hinders participation in professional life, then this can be a disability” under the Equal Treatment in Employment Directive.

Karsten Kaltoft, who never weighed less than 352 pounds (with a BMI of 54) during his 15-year tenure with the Municipality of Billund taking care of other people’s children in his home until he was terminated, claimed that his dismissal was based on his weight and sought damages for discrimination. The Court of Kolding in Denmark referred the case to the EU Court of Justice, seeking an opinion on whether the EU Treaty and Charter included a “self-standing prohibition on discrimination on the grounds of obesity,” or alternatively, whether “obesity can be classified as a disability and therefore fall within the scope of the Equal Treatment in Employment Directive.”

According to the advocate general, “there is no general, stand-alone prohibition on discrimination on grounds of obesity in EU law”—that is, the Treaty or Charter articles—but the Equal Treatment in Employment Directive prohibits discrimination on the basis of “limitations which result 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.” Because “extreme, severe or morbid obesity, that is to say a BMI of over 40, could suffice to create limitations, such as problems of mobility, endurance and mood,” this degree of obesity could amount to a “disability” under the Directive. The advocate general’s opinion is not binding on the Court of Justice, which is now considering the matter.

The advocate general concluded the opinion by noting that “the origin of the disability is irrelevant. The notion of disability is objective and does not depend on whether the applicant has contributed causally to the acquisition of his disability through ‘self-inflicted’ excessive energy intake. Otherwise physical disability resulting from reckless risk-taking in traffic or sports would be excluded from the meaning of disability.”