Fag ogArbejde, acting on behalf of Karsten Kaltoft v. Kommunernes Landsforening, acting on behalf of the Municipality of Billund

The plaintiff, a childminder in the employ of the Municipality of Billund (the defendant), was fired. The plaintiff claimed such firing was due to his obesity, although  the defendant claimed that the plaintiff was fired due to a decline in the number of children for him to take care of.

The European Convention for the Protection of Human Rights and Fundamental Freedom prevented firing on the basis of discrimination on various grounds. Danish law, codifying Council Directive 2000/78 (the “relevant Council Directive”) stated that when an employee had a disability, his employer was obliged to accommodate such disabled employee.  The plaintiff brought suit in the District Court, claiming that he had been discriminated against on the basis of obesity.

The District Court stayed proceedings and referred four questions to the European Union Court of Justice relating to (1) whether it was contrary to EU law for a public-sector employer to discriminate on the grounds of obesity; (2) if there was such an EU prohibition on obesity-related discrimination, whether such prohibition was directly applicable between a Danish citizen and his public authority employer; (3) on which party the burden of proof of proving such discrimination should fall; and (4) whether obesity could be deemed a disability covered by the protection provided in the relevant Council Directive and, if so, what were the decisive criteria for determining whether a person’s obesity entitled such person to the protections set forth in the relevant Council Directive.

With regard to the first question of whether it was contrary to EU law for a public-sector employer to discriminate on the grounds of obesity, the Court chose not to lay down such precedent, concluding that no existing legal instrument prohibited discrimination against obese persons.  In view of such negative response to the first question, the Court noted there was no need to answer the second and third questions.

With regard to the fourth question, the Court considered whether the relevant Council Directive must be interpreted as meaning that the obesity of a worker could constitute a ‘disability’ and, if so, what were the criteria that determined whether an obese worker could avail himself of the protections afforded by the relevant Council Directive. The Court noted prior precedent, holding that “the concept of ‘disability’ must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.” The Court thus determined that the concept of “disability” referred to a hindrance in (not the complete impossibility of) the exercising of a professional activity and that the relevant Council Directive did not limit the scope of “disability” either by reference to the origin of such disability or by a determination of whether the affected person may have contributed to the onset of his disability.

Thus, while the Court noted that a person’s obesity in and of itself did not necessarily mean that such person was disabled, where obesity resulted in long-term physical, mental or psychological impairments which hindered the full and effective participation of the person concerned in professional life on an equal basis with other workers, obesity could be covered by the concept of “disability” within the relevant Council Directive.

“According to the case-law of the Court, the scope of Directive 2000/78 should not be extended by analogy beyond the discrimination based on the grounds listed exhaustively in Article 1 thereof. . . . Consequently, obesity cannot as such be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination.” Paragraphs 36 and 37.

“Following the ratification by the European Union of the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009 (OJ 2010 L 23, p. 35), the Court held that the concept of ‘disability’ must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.” Paragraph 53.

“Moreover, it would run counter to the very aim of the directive, which is to implement equal treatment, to define its scope by reference to the origin of the disability.” Paragraph 55.

“The concept of ‘disability’ within the meaning of Directive 2000/78 does not depend on the extent to which the person may or may not have contributed to the onset of his disability.” Paragraph 56.

“However, in the event that, under given circumstances, the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, obesity can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78.” Paragraph 59.