EU law not laying down principle of non-discrimination on grounds of obesity
The Employment Equality Directive (Directive 2000/78/EC) prohibits discrimination based on religion, belief, disability, age or sexual orientation in relation to employment is prohibited.
Mr Kaltoft worked for 15 years for the Municipality of Billund as a childminder. In the course of that activity, he was responsible for taking care of children in his home. On 22 November 2010, the municipality terminated his employment contract. The municipality did not indicate the reasons as to why it was Mr Kaltoft who was chosen to be dismissed, but Mr Kaltoft’s obesity was mentioned during a meeting on his dismissal. The municipality however denied that obesity was among the reasons for Mr Kaltoft’s dismissal. Taking the view that the dismissal resulted from unlawful discrimination on grounds of obesity, the Fag og Arbejde (FOA), a workers’ union acting on behalf of Mr Kaltoft, brought proceedings before a Danish court seeking a declaration of that discrimination as well as compensation.
The referring Court on the one hand asked whether EU law itself prohibitted discrimination on grounds of obesity, and on the other hand whether obesity could constitute a disability and therefore falls within the scope of the EE- directive.
The Court first of all reiterated that the general principle of non-discrimination was a fundamental rights which formed an integral part of the general principles of EU law. However, no provision of the TEU or TFEU prohibitted discrimination on grounds of obesity as such. In particular, neither Article 10 TFEU nor Article 19 TFEU made reference to obesity. Nor did European Union secondary legislation lay down a general principle of non-discrimination on grounds of obesity as regards employment and occupation. In particular, Directive 2000/78 did not mention obesity as a ground for discrimination.
The Court reiterated that 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 (see judgments in Chacón Navas, EU:C:2006:456, para. 56, and Coleman, C‑303/06, EU:C:2008:415, para. 46). Consequently, obesity could not as such be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination (see, by analogy, judgment in Chacón Navas, EU:C:2006:456, para. 57).
The Court added that the provisions of the Charter of Fundamental Rights of the European Union were likewise inapplicable in such a situation (see, to that effect, judgment in Åkerberg Fransson, C‑617/10, EU:C:2013:105, on which I wrote this post).
The Court thus found that EU law did not lay down a general principle of non-discrimination on grounds of obesity as such as regards employment and occupation.
On the question whether obesity could constitute a disability and therefore falls within the scope of the EE- directive, the Court stressed that the concept of ‘disability’ must be understood as referring to a limitation which resulted 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 (see HK Danmark, EU:C:2013:222, paras. 37 to 39; Z., C‑363/12, EU:C:2014:159, para. 76; and Glatzel, C‑356/12, EU:C:2014:350, para 45).
The Court added 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 might hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation was a long-term one, obesity could be covered by the concept of ‘disability’ within the meaning of Directive 2000/78 (see, to that effect, judgment in HK Danmark, EU:C:2013:222, paragraph 41).
Such would be the case, in particular, if the obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset, in that person, of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity.
It is for the referring court to ascertain whether, in the case in the main proceedings, irrespective of the fact that Mr Kaltoft, carried out his work for approximately 15 years, his obesity entailed such a limitation. The Court stressed that should the referring court arrive at such conclusion, pursuant to Article 10(1) of Directive 2000/78, Member States were to take such measures as were necessary, in accordance with their national judicial systems, to ensure that, when persons who considered themselves wronged because the principle of equal treatment had not been applied to them establish, before a court or other competent authority, facts from which it might be presumed that there had been direct or indirect discrimination, it was for the respondent to prove that there had been no breach of that principle. According to Article 10(2), Article 10(1) did not prevent Member States from introducing rules on the burden of proof which are more favourable to plaintiffs.