ECJ: Equal treatment in employment – can obesity be classified as a disability?

Mr. K had been as a child-minder hired to care for other people’s children in his own home for fifteen years when his employment was terminated. A decline in the number of children was stated as the grounds for dismissal, yet there there was no express reason given for selecting Mr. K. Mr. K was classified as obese and he submits that he was unlawfully discriminates against because of his obesity.

The national Court of Kolding has asked the Court of Justice to clarify whether EU law, notably the Treaty and Charter, includes a self-standing prohibition on discrimination on the grounds of obesity. Alternatively, it asks if obesity can be classified as a disability and therefore fall within the scope of the Equal Treatment in Employment Directive.

The Advocate General points out that none of the Treaty or Charter articles explicitly refers to obesity as a prohibited ground of discrimination. He concludes that EU law does not include a general principle prohibiting employers from discriminating on grounds of obesity in the labour market.

What it comes to the question of disability, the Advocate General considers that if obesity has reached such a degree that it plainly hinders participating in professional life, then this can be a disability. He stated that, in his opinion, only severe obesity would create sufficient limitations to qualify as a disability, suggesting a BMI of 40 as a threshold. It is for the national court to determine if this is the case with respect to the plaintiff in the main proceedings.