By Katharina Ó Cathaoir, PhD Fellow, University of Copenhagen

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Does being obese qualify as a disability? This complex issue was the focus of Advocate General Jääskinen’s opinion on July 17, 2014, in the case of Kaltoft v. Municipality of Billund. The case has drawn significant interest, particularly regarding potential impacts on employment and healthcare. However, it’s crucial to note that the Advocate General’s opinion is not legally binding and the Court of Justice of the European Union (CJEU) will issue its own judgment in the coming months.

What Constitutes Obesity?

An adult is typically classified as obese if their Body Mass Index (BMI) exceeds 30. This metric is calculated by dividing weight in kilograms by height in meters squared. Across Europe, obesity rates have doubled in the past two decades, with roughly 17% of the adult population now considered obese. This rise has prompted increased efforts to address what’s often referred to as the obesity “epidemic.” While inactivity and excessive calorie intake are primary contributors, socioeconomic factors, such as access to healthy food choices and exercise opportunities, also play a role. Notably, maintaining long-term weight loss can be a significant challenge.

Details of the Kaltoft Case

Mr. Kaltoft was employed as a childminder by the Municipality of Billund for 15 years. Throughout this period, he consistently met the criteria for obesity, with his weight never falling below 160kg. The Municipality provided financial support for fitness programs, and Mr. Kaltoft explored bariatric surgery, though ultimately did not undergo the procedure. Contrary to some accounts, it’s not definitively established that Mr. Kaltoft’s dismissal stemmed from his obesity. This determination falls under the jurisdiction of the Danish court. Additionally, while initial reports suggested Mr. Kaltoft’s weight hindered his work, he has since clarified that this was not the case. Both he and the Municipality seem to agree that he could fulfill his job requirements.

Although not formally given a reason, Mr. Kaltoft was let go, with the Municipality citing a decrease in children needing care. However, Mr. Kaltoft alleges that his weight was discussed during his dismissal, leading him to believe it factored into the decision. He subsequently filed a claim for unlawful discrimination based on his obesity. The Danish court, in turn, referred several questions to the CJEU for preliminary rulings.

Question 1: Does EU law, as reflected in Article 6 TEU concerning fundamental rights, prohibit discrimination based on obesity in the labor market, particularly by public sector employers?

Advocate General Jääskinen’s opinion was that obesity does not fall under existing EU employment discrimination laws. He argued that the Charter of Fundamental Rights of the EU wasn’t applicable in this instance because Denmark wasn’t enacting EU law in this specific case. He stated the connection with EU law wasn’t strong enough beyond the fact that “matters covered are closely related, or one of those matters has an indirect impact on the other.” Additionally, he posited that Articles 10 and 19 TFEU, along with Directive 2000/78 (which prohibits employment discrimination based on factors like disability, age, religion, and sexual orientation) and Directive 2000/43/EC (addressing racial discrimination), offer specific protections rather than establishing a universal anti-discrimination principle. Therefore, he rejected a broader interpretation of discrimination within EU law as put forth by Mr. Kaltoft.

Having addressed the first three questions (the second and third became irrelevant due to the negative response to the first), the Advocate General delved into the concepts of disability and obesity.

Question 4: Does obesity qualify as a disability protected under Council Directive 2000/78EC? If so, what criteria determine whether an individual’s obesity grants them protection against discrimination based on disability as outlined in the directive?

The Advocate General stated that obesity in and of itself would not be considered a disability as defined by Directive 2000/78. However, he conceded that a certain level of obesity, if it aligned with criteria established by existing case law, could potentially qualify.

The view of obesity as a standalone disability is not widely supported. In the U.S., many states require an accompanying physiological condition for obesity to be recognized as a disability. Notably, the Equal Employment Opportunity Commission (EEOC) has taken the stance that “severe obesity,” defined as a body weight exceeding twice the norm, constitutes an impairment, and has successfully argued this point in several federal cases. This suggests a higher threshold for obesity to be considered a disability on its own.

When Obesity Might Be Classified as a Disability

The Employment Equality Directive does not explicitly define disability. However, it’s generally understood that the directive should align with the UN Convention on the Rights of Persons with Disabilities (UNCRPD). The Advocate General referenced the definition of disability used in prior cases:

“A limitation, stemming specifically from physical, mental, or psychological impairments, that can hinder an individual’s full and equal participation in professional life due to interactions with various barriers.”

Crucially, this limitation must be long-term. Echoing the earlier case, the Advocate General leaned heavily on the UNCRPD and acknowledged the evolving understanding of disability.

He concluded that “mere” obesity was insufficient for disability status, suggesting that “most probably only WHO class III obesity, encompassing severe, extreme, or morbid obesity, would lead to limitations such as mobility issues, reduced stamina, and mood swings.”

The Advocate General also stipulated that an individual’s ability to perform their job should not disqualify them from the Directive’s protection. Therefore, the long-term condition must impact an individual’s “full and effective participation in professional life in general” rather than being specific to a single role. This might be due to limitations that are physical, psychological, or a combination of both.

Significantly, the Advocate General considered the cause of the disability to be irrelevant, meaning whether obesity stemmed from personal choices or external factors was not a factor. He pointed out that many recognized disabilities can result from negligence or risk-taking behaviors, and therefore, a moral judgment should be avoided.

Implications of Disability Status

Under the EU Employment Equality Directive, employers have a responsibility to make reasonable accommodations for employees with disabilities, as outlined in Article 5:

“To ensure equal treatment for individuals with disabilities, reasonable accommodations must be provided. This entails employers taking appropriate measures, tailored to the specific case, to enable an employee with a disability to access, participate in, or advance within employment, or to undergo training, unless these measures would impose a disproportionate burden on the employer. This burden is not considered disproportionate if it is sufficiently addressed by existing disability policies within the Member State.”

Thus, this obligation is not absolute, and employers may argue that making accommodations would place an undue burden on them. Moreover, as highlighted by the Advocate General, employers are not required to retain employees who are unable to “perform the essential functions of their position.” This clarification seems to address some of the concerns regarding the potential for far-reaching consequences of the ruling.

Recital 20 of the Preamble suggests that reasonable accommodations could include modifications to “premises and equipment, working time arrangements, task distribution, or the provision of training and integration resources.” The specifics, however, are contingent on the individual’s needs and circumstances.

Guidance on determining whether an accommodation constitutes a “disproportionate burden” is provided in Recital 21 of the Preamble:

“When assessing whether the measures in question lead to a disproportionate burden, particular consideration should be given to the financial and other costs involved, the size and financial resources of the organization or undertaking, and the possibility of securing public funding or alternative assistance.”

Commentary

In their work Against Health: How Health Became the New Morality, Kirkland and others critique the use of “health” to make moral and value judgments about individuals. The Advocate General’s approach, by focusing on an individual’s functional capacity rather than attributing blame or responsibility, sidesteps this issue. Nevertheless, some worry that addressing obesity discrimination might inadvertently normalize or even condone obesity. Will employers now be faced with significant financial burdens? Is it demeaning to categorize a potentially manageable condition as a disability? Given the ongoing efforts to combat obesity, does framing it as a disability requiring protection contradict public health goals? Will this perspective further medicalize obesity and undermine personal accountability?

The challenges faced by obese individuals should not be disregarded. Discrimination in employment and healthcare settings is well-documented and appears to be on the rise. The Advocate General’s stance, where only severe obesity might qualify as a disability on its own, strikes a balance. Practically speaking, this applies to a small subset of obese individuals, especially given the long-term requirement. Many individuals strive for weight loss, but some, like Mr. Kaltoft, struggle to maintain it despite their efforts. Factors such as diet and personal choices also play a role in other recognized disabilities like diabetes.

Stigma and discrimination should not be tools in public health strategies. In fact, shame is a major obstacle for obese individuals seeking healthcare or engaging in physical activity. Stigma is unlikely to reduce obesity rates. Furthermore, recognizing a condition as a disability should not be viewed as infantilizing, but rather as promoting full and equal societal participation.

Conclusion

The Advocate General’s opinion will likely be seen as too moderate by some and too extreme by others. While he stopped short of declaring obesity a disability in its own right, he suggested that extreme obesity could potentially qualify. Despite demonstrating an understanding shaped by a rights-based approach, applying the label of disability to individuals based solely on a certain level of obesity requires further consideration. It remains unclear why Class III obesity was specifically singled out as the sole category automatically warranting recognition as a disability. Clearer explanation is needed regarding the specific limitations that differentiate an individual with a BMI of 39 from one with a BMI of 40. Ultimately, employers must avoid stigmatizing or insensitive identification of employees based on physical attributes, regardless of intent.

Update: the CJEU issued its judgment in this case in December 2014. See discussion here.

Barnard & Peers: chapter 20