Discrimination by an employer on the basis of obesity could be illegal, the Court of Justice of the European Union affirmed in a recent ruling. This is particularly so when such obesity hinders the full and effective participation of the employee in professional life on an equal basis with other workers. In such cases, “obesity” can be considered as a “disability”.

In terms of the EU’s directive on equality in employment, an employer cannot discriminate on the basis of religion, belief, disability, age or sexual orientation in relation to job seekers or employees.

Any form of discrimination by an employer, be it direct or indirect, on any of these grounds is clearly illegal. In this particular case, an individual worked for 15 years for a Danish municipality as a child minder. The municipality terminated his employment contract. While the dismissal was motivated by a decrease in the number of children to be taken care of, the municipality did not indicate the reasons as to why it was this particular individual who was chosen to be dismissed.

Throughout the duration of his employment contract, the employee in question was considered to be obese in terms of the definition of the World Health Organisation. Although such obesity was mentioned during a meeting on his dismissal, the parties disagreed over the manner in which this issue was discussed.

The municipality denied that obesity was among the reasons for the dismissal. However, the workers’ union acting on behalf of the redundant employee disagreed and claimed that the dismissal was the result of unlawful discrimination on the grounds of obesity.

The Danish court seized of the dispute made a preliminary reference to the CJEU requesting guidance as to whether EU law specifically prohibits discrimination by an employer on grounds of obesity or whether obesity could be considered as a disability in terms of the EU directive providing for non-discrimination in employment matters.

This ruling could prove to be very significant in a day and age when obesity seems to be on the incline

The CJEU observed that EU law does not specifically prohibit discrimination on the basis of obesity. The purpose of the directive is to lay down a general framework for combating discrimination in the area of employment and occupation, on any of the exhaustive grounds referred to in the directive – which grounds include disability. The court noted that the concept of disability refers to any limitation which results from long-term physical, mental or psychological impairments, which, when in combination with other obstacles, may hinder the full and effective participation of a person in professional life on an equal footing with other workers.

The court emphasised that this concept comprises not only the impossibility of exercising a professional activity but also a limitation which serves as an obstacle to the exercise of such an activity. It explained that the objective of the directive – which is that of ensuring equal treatment in employment to those suffering from a disability – would not be achieved if its applicability to concrete cases were to depend on the origin of the disability.

The Court then concluded that employers cannot discriminate against obese employees if such obesity hinders the employee from participating fully in his profession on account of reduced mobility, the onset of medical conditions or discomfort when exercising his profession. In such circumstances, the “obesity” of the employee ought to be considered as a “disability” in terms of EU law ensuring equal treatment of employees.

This ruling could prove to be very significant in a day and age when obesity seems to be on the incline. Employers must tread cautiously when engaging or dismissing employees in order to ensure at all times that they are in full compliance with employment anti-discrimination laws.

mariosa@vellacardona.com

Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.