Obesity may qualify as a disability

The ECJ was recently asked in the case of Kaltoft v Kommunernes Landsforening to consider whether obesity should be regarded as being a disability for the purposes of disability discrimination. The case concerns an overweight Danish childminder, Karsten Kaltoft, who was sacked by his employer (the local authority) allegedly because the employer thought that he could not perform his duties due to his weight. Mr Kaltoft brought a disability discrimination claim. The Danish courts referred the question to the ECJ whether obesity should be regarded as a disability.

On 18 December 2014, the ECJ handed down its judgment and confirmed that, whilst there is no general principle prohibiting employers from discriminating on grounds of obesity in the labour market, obesity can be a disability covered by the protection against disability discrimination. This will be the case if the obesity entails a long term limitation which results in particular from physical, mental or psychological impairments that, in interaction with various barriers, may hinder full and effective participation of the person concerned in professional life on an equal basis with other workers. Such would be the case, in particular, if the obesity of the worker hindered participation in professional life due to reduced mobility or the onset of medical conditions preventing that person from carrying out work or causing discomfort when exercising professional activity.

It is for the national court to determine whether a particular claimant’s obesity falls within the definition of ‘disability’. The ECJ specifically did not adopt the threshold indicated by the Advocate General’s opinion of ‘severe’ obesity, which refers to morbid obesity, meaning a BMI of 40 or more. This must be the correct approach, since what is relevant is not the employee’s weight as such but the impact it has on their day-to-day activities, but it will raise familiar issues for employers determining whether particular employees are disabled or not.
This post was kindly provided by our Employment colleagues in the UK. For more information regarding the impact of this judgment in the UK, please visit http://www.dlapiperbeaware.co.uk/

This decision may also have an impact on German law. In particular, the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) prohibits workplace discrimination on grounds of disability. Consequently, it may not be possible for an employer to e.g. reject applicants based on their weight. However, in practice, a line will have to be drawn between obesity and mere overweight.