The Advocate-General: Obesity may constitute a disability
According to the Advocate-General's opinion of 17 July 2014 on the decision of the European Court of Justice in the so-called "obesity case", severe obesity may constitute a disability in the sense of the Danish Anti-Discrimination Act.
The referral was caused by the fact that a municipality in November 2010 dismissed a child minder who was severely obese. During his employment with the municipality, the child minder's weight was never below 160 kg, and there was agreement that with a BMI of at least 40, the child minder should be classified as severely, extremely or morbidly obese based on the terminology used by the WHO. The child minder argued that the dismissal constituted discrimination due to his obesity, although it was disputed whether the dismissal was due to the child minders' obesity.
The Advocate-General answered the first question by referring to the fact that obesity is not mentioned as a prohibited ground of discrimination in any EU provision, and subsequently, his considerations related to whether the prohibition against discrimination as stipulated in Article 21 of the Charter of Fundamental Rights of the European Union protects an employee against discrimination due to obesity.
The Advocate-General denied that any general protection against discrimination due to obesity could be inferred from the Charter by referring to the fact that the European Court of Justice has previously confirmed that the EU Treaty prevents the Charter from "in any way extending the powers of the Union as stipulated in the treaties". Consequently, the Charter is only binding on the member states when they are "implementing" Union law and cannot as such constitute an independent protection against discrimination.
With respect to the second question, the Advocate-General initially stated that the concept of disability is an EU concept, the limitations of which have been established by the European Court of Justice. Against this background, the concept must be interpreted to the effect that "it comprises limitations due to e.g. (i) long-term, (ii) physical, mental or psychological impairments, (iii) which in interaction with various barriers (iv) may hinder (v) the affected individual's full and effective participation in society (v) on an equal basis with other employees."
In the Advocate-General's opinion, severe obesity may constitute a disability in the sense of the directive, and the Kolding City Court must accordingly take the following into account when making its decision in the case:
that in the decision as to whether the child minder's illness has been medically diagnosed in accordance with the criteria laid down by the European Court of Justice in the Ring and Werge cases, attention should be paid to the fact that he had been medically referred for gastric surgery with a view to reducing his stomach, which was aborted due to complications,that the child minder is comprised by the WHO's highest class of obesity,
that the reason for the child minder's obesity is of no relevance to the decision of the case,
that obesity may only be considered a disability in those situations where an employee is extremely obese (the WHO's highest class) as obesity will only in these situations have reached a point where it, in interaction with barriers defined by attitude and surroundings, will hinder the relevant individual's full and effective participation in society on an equal basis with other employees due to physical and/or mental limitations.
The Advocate-General's opinion opens up the possibility that, going forward, severe obesity may be regarded as comprised by the concept of disability under the Anti-Discrimination Act. Therefore, it will be interesting to see if the European Court of Justice will reach the same conclusion.
The Advocate-General's opinion can be found here: