Obesity should be viewed as a disability

Protection against discrimination in the case of obesity

Are obese workers legally protected from being discriminated against in professional life because of their obesity?

Directive 2000/78 / EC of November 27, 2000 establishing a general framework for the implementation of equal treatment in employment and occupation (Directive 2000/78 / EC) obliges the EU states to take appropriate measures against discrimination in working life.

However, this directive does not contain a general prohibition of discrimination, but only addresses discrimination based on certain reasons or special characteristics of the victim of discrimination. Specifically, Article 1 of Directive 2000/78 / EC contains a prohibition of discrimination

In addition, European law prohibits discrimination on the basis of racist reasons or on the basis of ethnic origin and gender.

Since (severely) overweight employees often have a harder time advancing at work than those of normal weight, there is a protection gap here. One could therefore argue that (severe) overweight falls under the concept of "disability". Obese job applicants and employees could then demand that their weight should not be a reason for being in a worse position at work.

On the other hand, such an interpretation of the concept of disability would greatly expand the scope of Directive 2000/78 / EC, and that should not be the task of case law or the ECJ, but rather be decided by the European Council or the European Parliament.

Against this background, the Advocate General at the ECJ Jääskinen tries to strike a middle path in his Opinion of July 17, 2014 (Case C-354/13 - Kaltoft).

The Danish referral case: severely overweight municipal employees are dismissed after 15 years of employment

In the referral case from Denmark, a community employee, Mr Kaltoft, was duly dismissed after he had worked for the community for 15 years as a so-called childcare provider, i.e. in outpatient childcare.

His overweight may have played a role in the termination. After all, Mr. Kaltoft never weighed less than 160 kg during the entire duration of his activity, and that with a height of 172 cm. His body mass index (BMI) was therefore always (more than) 54, which is an extreme value.

Mr. Kaltoft felt discriminated against by the dismissal and therefore sued for compensation. The Danish court dealing with the case therefore asked the ECJ whether any (possibly existing) discrimination on the grounds of obesity is prohibited by European law or, if this is not the case, whether obesity is then at least a "disability" within the meaning of Article 1 of Directive 2000/78 / EC is to be considered.

Advocate General Jääskinen: Grade III obesity should be recognized as a "disability" within the meaning of Directive 2000/78 / EC

The Advocate General argues first that EU law does not contain a specific prohibition on discrimination against overweight workers.

However, according to the Advocate General, an extreme overweight, as here in the Danish dispute, should be recognized as a "disability". In doing so, the Advocate General refers to the internationally recognized classification of obesity degrees, which in turn are based on the BMI. A BMI of 40 or more is "obesity grade III" and people who are so extremely overweight should, in the opinion of the Advocate General, be considered "disabled" within the meaning of Directive 2000/78 / EC.

Because the ECJ understands a disability within the meaning of Directive 2000/78 / EC to be restrictions,

  • resulting from long-term (physical, mental or psychological) impairments, and
  • which, in interaction with various barriers, can prevent full and equal participation in professional life.

As Jääskinen makes clear, it is not a question of whether or not the disabled employee can perform his or her specific work, but rather whether he is generally prevented from participating in professional life on an equal footing.

In the opinion of the Advocate General, this can be assumed in the case of degree III obesity. Because then there are typically problems with mobility, resilience and mood.

Conclusion: Since the ECJ follows the decision proposals of its advocates general in most cases, the ECJ will presumably clarify in its judgment in this dispute that employees with obesity grade III are "disabled". Conversely, it follows from this that obesity ("normal" to "medium") below this limit does not constitute a disability.

This would be confirmed by a current judgment of the Darmstadt Labor Court on June 12, 2014, with which the Labor Court had rejected the compensation claim of a slightly overweight job applicant (we reported in: Arbeitsrecht aktuell: 14/221 Discrimination due to obesity). As long as the preponderance of a job applicant does not reach the limit drawn here by the Advocate General, it can continue to be a reason for rejection.

You can find more information here:

Note: In the meantime, i.e. after this article was drawn up, the European Court of Justice (ECJ) has ruled on the case and partly endorsed the advocate general's proposals. Information on this ECJ ruling can be found here:

Last revision: August 31, 2018

For further information please contact:

Dr. Martin Hensche
Lawyer, specialist lawyer for labor law

HENSCHE lawyers, specialist lawyers for labor law
Berlin office

Lützowstrasse 32, 10785 Berlin
Telephone: 030 - 26 39 62 0
Fax: 030 - 26 39 62 499
Email: [email protected]
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