The Cjeu Rules On Obesity Together With Discrimination Law

 

Katharina O Cathaoir

In its judgment today inwards Kaltoft, the European Court of Justice has confirmed that obesity is neither a protected reason of discrimination nether European Union exercise constabulary nor a disability per se. However, inwards for certain circumstances the EU’s Directive banning discrimination inwards exercise on grounds of disability could apply. (Note that European Union constabulary does not ban disability discrimination outside the workplace, then today’s judgment volition exclusively hold upwardly relevant to exercise disputes.)

Obesity equally a protected ground

The instance concerned a human being who alleged that he lost his labor due to his obesity (for to a greater extent than details of the facts, together with a tidings of the persuasion of the Advocate General, encounter here). The Court agreed amongst the Advocate-General that obesity is non a protected reason nether European Union exercise law. There is no cite of obesity inwards the TFEU or TEU. Neither is at that spot a full general prohibition of discrimination. The protected grounds of religious belief or belief, disability, historic menses or sexual orientation are exhaustive together with it is non for the Court to extend these past times analogy (there are too European Union rules on sex, race together with nationality discrimination). However, Member States may furnish for increased protection nether national law.

Obesity equally a disability

The Court adopted a functionality examine whereby obesity tin exclusively amount to a disability when accompanied past times an harm of the individual’s might to piece of occupation on an equal footing to others. Individuals create non convey to hold upwardly incapable of fulfilling their exercise tasks, but their might to create then on the same footing equally others must hold upwardly impaired. The Court suggested that individuals amongst obesity and decreased mobility or resulting diseases that hinder piece of occupation might or crusade discomfort that does so, may convey a disability nether European Union exercise law. Thus, it is the effect of obesity, non obesity inwards itself, which is of importance inwards deciding whether an private has a disability.

The Court avoided the AG’s proffer that individuals at the upper close flat of obesity (BMI 40+) could hold upwardly assumed to convey functionality issues together with thereby, a disability. The Court instead made no cite of BMI equally a mensurate of disability together with concentrated on the outcome of obesity, non the flat to which an private is obese.

It volition hold upwardly for the Danish court, which referred these questions to the CJEU, to determine whether Mr. Kaltoft’s obesity entailed a limitation that affected his might to create his piece of occupation on an equal footing to others.

Implications

Although nosotros are may hold upwardly flooded amongst inaccurate headlines, the seat of individuals amongst obesity nether European Union constabulary seems to stay unchanged. Employers are probable to breathe a sigh of relief that a BMI examine has been avoided. Indeed, this could convey led to an appearance based examine whereby employers felt pushed to choke on an oculus on their employees’ size. How together with should an employer convey access to this sort of personal information?

The instance has brought obesity to the fore. Given the flat of obesity inwards Europe, employers may laid out to rethink their piece of occupation practices. The employer has a role to play inwards his or her employee’s health. For example, employers may reconsider the nutrient they serve inwards their canteens or the extent to which they brand physical exercise accessible to their employees, if it volition convey ramifications for their legal obligations nether discrimination law.

 

Barnard & Peers: chapter xx

 

Share this post