Can obesity be considered a disability?

• Case C-354/13 Karsten Kaltoft vs Municipality of Billund

• Advocate General’s Opinion

Case C-354/13

Karsten Kaltoft had been working for the Municipality of Billund in Denmark as a child-minder hired to care for other people’s children in his own home for fifteen years when his employment was terminated on 22 November 2010. A decline in the number of children was stated as the grounds for dismissal, yet there was no express reason given for selecting Mr Kaltoft.

Case C-354/13

He never weighed less than 160 Kg and was 1.72m tall. He was obese, as defined by the World Health Organisation (WHO).Whilst Mr Kaltoft’s obesity was discussed at his official dismissal hearing, the parties disagree as to how it came to be discussed and the Municipality denies that it formed part of the basis of its decision. Mr Kaltoft, however, claims that his dismissal was rooted in unlawfull discrimination against him due to his weight, and has taken action in a Danish District Court claiming damages for this discrimination.

Case C-354/13

Mr Kaltoft based his case on two key arguments:

1. That obesity falls within a general prohibition in EU law, covering all forms of discrimination in the labour market;

2. That obesity is a form of “disability”.

Case C-354/13

The Danish Court (Court of Kolding, Denmark) asked the European Court of Justice (ECJ) to decide:

• if obesity can really be considered as a disability

• if obesity is covered by the prohibition on discrimination in the equal treatment framework directive 2000/78/EC

Advocate General’s Opinion

On 17 July 2014, the Advocate General Jääskinen gave his opinion:

Whilst there is no general principle of EU law prohibiting discrimination on grounds of obesity in its own right, morbid obesity may come within the meaning of “disability” if it is of such a degree as to hinder full participation in professional life on

an equal footing with other employees.

It is for the national court to determine if this is the case with respect to the plaintiff in the main proceedings.

Advocate General’s Opinion

Finally, the Advocate General adds 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 throught “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.

The Court of Justice has yet to deliver its decision

Fabiola D’Alessio