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Court of Justice of the European Union: Opinion of Advocate General on Obesity as a Form of Disability

(July 31, 2014) On July 17, 2014, Niilo Jääskinen, the Advocate General (AG) of the Court of Justice of the European Union (CJEU), issued an opinion in a case involving a man who worked as a public employee in Denmark taking care of children in his own home for 15 years who instituted legal proceedings in a court in Denmark upon receiving notification in writing that he had been dismissed from his job because of a declining number of children needing childcare in the municipality. (Opinion of Advocate General Jääskinen Delivered on 17 July 2014 (1), Case C-354/13 FOA, Acting on Behalf of Karsten Kaltoft v. Kommunernes Landsforening (KL), Acting on Behalf of the Municipality of Billund, EUR-LEX.) The plaintiff, Karsten Kaltoft, claimed that his employment was terminated because he was obese; he weighed about 353 pounds and was about 5′ 7″ tall. Kaltoft’s employer had provided financial assistance for a year to enable him to take part in fitness training. (Id.)

At an official hearing that took place following Kaltoft’s dismissal, the issue of obesity was discussed, but not as grounds for the dismissal. The plaintiff claimed unlawful discrimination due to his obesity and requested compensation from his employer. In pursuit of this claim, he had instituted proceedings before the court in the town of Kolding. (Id.)

The AG, whose role under the European Union justice system is to render opinions on cases before the CJEU, remarked that this is the first time that the issue of obesity as a ground for discrimination has been brought to the attention of the Court. The AG’s opinions are not binding, but they are usually followed by the CJEU when it renders a judgment a few months later.

The Issues in the Case

The Kolding. court requested that the CJEU issue a preliminary ruling on the following two issues: (a) whether under EU law there is a prohibition of discrimination on grounds of obesity, and (b) whether obesity is a disability under Directive 2000/78/EC, which prohibits “any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation” in employment and occupation, and if so, what constitute the basic criteria to assess whether a person’s obesity gives him/her protection by virtue of this prohibition against discrimination. (Id.; Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation, 2000 O.J. (L 303) 16-22, available at EUR-LEX.)

In his analysis, the AG examined the preliminary question of whether obesity can qualify as an independent ground for discrimination. He stated that even though there is no general principle of EU law that prohibits discrimination based on obesity, it is possible that “obesity of a certain severity may amount to a disability under Directive 2000/78/EC.” (Opinion of Advocate General Jääskinen, supra, ¶ 15). He cited article 21 of the Charter of Fundamental Rights, which has an open-ended prohibition of discrimination, and argued that based on the wording “such as,” other grounds for discrimination could be included, for instance, appearance, size, or social factors such as status or class. (Id. ¶ 17; Charter of Fundamental Rights of the European Union, 2012 O.J. (C 326) 02), available at EUR-LEX.)

The AG went on to examine the notion of disability under Directive 2000/78/EC, as analyzed in the case-law of the CJEU. He stated that even though disability is not defined in the Directive, an autonomous and uniform interpretation has been developed by the Court, taking into consideration the United Nations Convention on the Rights of Persons with Disabilities, which the EU approved in 2009. (Opinion of Advocate General Jääskinen, supra, ¶ 29; Convention on the Rights of Persons with Disabilities, A/61/611 (Dec. 6, 2006), UNITED NATIONS ENABLE.) He stated that based on the objective of the Directive to ensure that a person with a disability will have access to or will be able to participate in employment, the notion of disability must be understood to comprise also “a hindrance to the exercise of professional activity, not only to the impossibility of exercising such activity.” (Opinion of Advocate General Jääskinen, supra, ¶ 33.)

As to the question of whether obesity amounts to a disability, the AG cited the World Health Organization (WHO), which classifies obesity into three types depending on the body mass index (BMI) indicators. (BMI Classification, WHO website (last visited July 30, 2014).) People with a BMI in excess of 40.00 points are in Class III. Kaltoft argued that WHO deems obesity to be a chronic illness. The AG argued that mere classification of obesity as an illness by WHO is not sufficient for it to meet the criteria for a disability as established by CJEU case law and thus fall within the scope of the Directive. Consequently, the AG stated, only obesity “that is severe, extreme or morbid” that may create “problems in mobility, endurance, and mood” and that may hinder the person from fully and effectively participating in professional life equally with other workers may amount to a disability for the purposes of the Directive. (Id. ¶¶ 56& 61(2).)

The final decision on the issue will be made by the appropriate court in Denmark and must follow the CJEU’s interpretation of the law.