The European Court of Justice Rules on Obesity Discrimination
The rapid increase in overweight and obesity around the globe has stimulated a discussion of whether and how obesity should be addressed in international law. Currently, no multilaterally binding rules govern states’ approaches to the rise in obesity. International organizations such as the World Health Organization (WHO), the Food and Agriculture Organization, the World Bank, and the Organization for Economic Co-operation and Development, along with numerous non-governmental organizations, have promulgated guidelines and programs to promote improved nutrition and physical activity as a matter of public health. But these soft law instruments say little about the obese person’s rights to equal treatment. Clearly a matter implicating the human rights to health and adequate food, obesity also lends itself to non-discrimination analysis. Characterizing obesity—as a “problem” engendering a right to treatment or as a personal “characteristic”—is similar to characterizing a disability. Yet, should the law analogize obesity to other disabilities?
A December 2014 Court of Justice of the European Union (CJEU) judgment analyzing the legal relevance of body weight in employment discrimination law provides an opportunity to consider how international law might approach obesity at the level of the individual. The CJEU’s ruling in Fag og Arbejde (FOA) v. Kommunernes Landsforening (KL) examined whether either the general principle of non-discrimination and the right to equal treatment in European Union (EU) law or the EU’s specific prohibition of discrimination in the employment context in Directive 2000/78/EC prevents the dismissal of a public employee due to obesity. The Court found that the absence of an explicit reference to obesity in the EU treaties and the Directive forecloses a direct prohibition of employment discrimination on grounds of weight. However, the Court left open the possibility of indirectly protecting obese individuals from discriminatory actions in the workplace by identifying obesity as a potential disability.
Factual and Legal Background
Karsten Kaltoft had been a municipal childcare provider for fifteen years when the town informed him that it was terminating his position. Faced with a drop in the number of children requiring care, the municipality had to dismiss one of its childminders, and the head selected Mr. Kaltoft. With a body mass index of over fifty, Kaltoft is obese according to WHO standards. He had been so for his entire career, despite his repeated attempts (partially financed by his employer) to lose weight. Kaltoft’s obesity was not mentioned in the official letter of termination, but he suspected that the town had discriminated against him on account of his weight.
The workers’ union challenged the termination in local court on Kaltoft’s behalf, claiming a violation of both Kaltoft’s general right to equal treatment and the specific prohibition of discrimination applying to public sector employers in Directive 2000/78/EC. Article 1 of the Directive states that its purpose is “to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.” Article 2(1) explains that “the ‘principle of equal treatment’ shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.”
Faced with interpreting the scope of the non-discrimination principle and the definition of disability in Directive 2000/78, the Danish district court stayed the proceedings to request the CJEU to issue a ruling on the meaning of these terms. The CJEU addressed two main questions: first, whether European law directly prohibits employment discrimination on grounds of obesity, and; secondly, whether obesity can be considered a disability.
Does European Employment Law Directly Prohibit Discrimination on Grounds of Obesity?
In examining whether a European employee has a right not to be discriminated against because of weight, the Court initially pointed out that no non-discrimination provision of the EU treaties specifically mentions “obesity.” The text of Directive 2000/78 is similarly void of references to “obesity” or “weight.” The Court read the closed nature of its list of prohibited grounds of discrimination as signs that European employment law does not directly prohibit obesity discrimination. Moreover, the Court said it would be improper to extend the Union’s competences by expansively interpreting EU employment law to include such a prohibition. Thus, European employment law does not directly prohibit discrimination based on obesity.
Is Obesity a Disability?
Even if obesity itself is not a prohibited ground of discrimination, the claimant argued that extreme overweight can be considered a “disability.” Because Directive 2000/78 explicitly precludes discrimination on the basis of “disability,” the dismissal arguably violated the principle of equal treatment in employment and occupation under the Directive.
This argument enjoyed more sympathy from the CJEU. To address it, the Court engaged in a lengthy discussion of the definition of “disability.” Prior case law affirmed that the understanding of “disability” set out in the United Nations Convention on the Rights of Persons with Disabilities (CRPD) binds the CJEU. That definition takes a social view of impediments to an individual’s ability to function: A disability refers “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.” Accordingly, the Court concluded that whether a particular characteristic is a disability depends on whether the characteristic prevents a given person from fully participating in equal measure with his or her coworkers. A disability is not confined to an objective “impairment” that makes performing certain tasks impossible.
Obesity itself may or may not be a “disability” under this definition. For example, obesity would be a disability if, in a particular case, it led to illness preventing a person from working or reduced his or her capacity to move about in a job demanding physical agility. If, however, obesity did not impact an individual’s ability to fully carry out the work required and, to perform and participate in the relevant employment equally with others, then obesity in that instance would not be a disability.
The Outcome for Kaltoft
The Court ordered the Danish court to examine Kaltoft’s complaint against the background of this analytical framework. If the judge finds that Kaltoft’s ability to care for children in the past was unaffected by his obesity, then he cannot be considered “disabled” and his complaint will be dismissed. If, however, he can demonstrate that his obesity limited his ability to take part “full[y] and effective[ly]” in his profession, then his obesity is a disability and the municipality will have the burden of proving that its dismissal of him did not breach the principle of equal treatment under the Directive.
Significance for International Law
The CJEU’s decision to deny obesity per se as a prohibited ground of employment discrimination is rational in light of the explicit language of Directive 2000/78, which omits the word “obesity.” However, the decision must be recognized as having been decided on that narrow basis. The general characterization of obesity in EU law remains unresolved, because the Court did not determine whether obesity falls within the general prohibition of discrimination found in the Charter of Fundamental Rights of the European Union (CFR). Like Article 14 of the European Convention on Human Rights, Article 21 of the CFR contains an open list of grounds on which discrimination is prohibited. The relevant language—“Any discrimination based on any ground such as sex, race, . . . disability, age or sexual orientation shall be prohibited”—clearly leaves open the possibility of encompassing weight.
For international law generally, the significance of Kaltoft’s case is that it is the first highly visible decision on a state’s obligations toward obese persons as individuals and as an identifiable group. The CJEU’s recognition of obesity within the definition of disability coincides with growing attention to the international law of disabilities and an awareness of the social nature of the difficulties persons with disabilities face. The judgment may be attractive from a human rights perspective because by treating obesity as a disability it offers a way of broadening closed-list non-discrimination provisions.
The decision nevertheless raises two difficulties in developing a comprehensive approach to obesity. First, it makes findings of indirect discrimination against obese employees particularly sensitive, as the legal implications of having a disability are far-reaching. The CRPD requires states to refrain from discriminating against persons with disabilities and also to accommodate them. The accommodation aspect is key to achieving the effective equality of persons with disability, but it imposes financial obligations on governments, employers, and service providers. Judges may be hesitant to make declarations of indirect discrimination in that context.
Second, the CJEU’s decision to adopt a context-specific approach to “disability” is ambiguous. The CRPD clearly supports a definition of disability as a socially-created condition rather than focusing on the impairments themselves. However, unless the definition can take into account the social prejudices and other “barriers” to full and effective participation in all aspects of the person’s life (rather than solely those in the work context), a perverse situation could arise: Obese employees could be fired for being obese as long as they could perform the job as well as their co-workers (in which case the obesity would not be a disability). Yet if obese employees could not—on account of their obesity—so perform the job, the employer could not dismiss them because that would amount to discrimination based on disability.
Non-discrimination and disabilities law can answer only some of the multidimensional legal issues surrounding overweight and obesity. With this decision, the international legal community has a starting point for discussion of what body weight means to us as a society and as individuals.
About the Author: Krista Nadakavukaren Schefer, an ASIL Member, is Professor at the University of Basel Faculty of Law. She has a PhD in law from the University of Bern and a JD from Georgetown University Law Center.
 Krista Nadakavukaren Schefer, The International Law of Overweight and Obesity, 9 Asian J. WTO & Int’l Health L. & Pol’y 1, 17–23 (2014).
 See id. at 17–23.
 Case C-354/13, Fag og Arbejde v. Kommunernes Landsforening, ECLI:EU:C:2014:2463 (2014) [hereinafter Case C-354/13].
 Body mass index (BMI) is measured by calculating (weight in kg)/(height in m)2. A BMI of over thirty is considered obese. Obesity and Overweight, Factsheet No. 311, World Health Organization (Jan., 2015),http://www.who.int/mediacentre/factsheets/fs311/en/. Kaltoft was 1.72m tall and weighed at least 160 kg. Opinion of Advocate General Jääskinen, Case C-354/13, Fag og Arbejde v. Kommunernes Landsforening, ECLI:EU:C:2014:2106, ¶ 2 (2014).
 The parties disagreed as to whether the topic of Kaltoft’s weight was discussed in his dismissal hearing. Case C-354/13, supra note 3, ¶ 24.
 Id. ¶ 29.
 Council Directive 2000/78/EC, of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation, 2000 O.J. (L 303) 16.
 Id. arts. 1, 2(1).
 EU law provides a procedural mechanism for national courts to request a preliminary ruling from the CJEU on the interpretation of EU legal provisions to ensure harmonization. Consolidated Version of the Treaty on the Functioning of the European Union, art. 267, May 9, 2008, 2008 O.J. (C115) 47 [hereinafter TFEU].
 The Court had four questions before it, but the second and third were dependent on an affirmative answer to the first, which was not the result of the analysis. Accordingly, the Court found it unnecessary to address the second and third questions. C-354/13, supra note 3, ¶ 41.
 Id. ¶ 33.
 Id. ¶ 35.
 Id. ¶ 39.
 Id. ¶ 40.
 Convention on the Rights of Persons with Disabilities, Dec. 13, 2006, 2515 U.N.T.S. 3, [hereinafter CRPD]. Approval for the Treaty was set forth in Council Decision 2010/48/EC, 2010 O.J. (L 23) 35. EU ratification followed on December 23, 2010.
 Joined Cases C‑335/11 & C‑337/11, HK Danmark v. Dansk almennyttigt Boligselskab, Dansk Arbejdsgiverforening, ECLI:EU:C:2013:222, ¶ 32 (2013), [hereinafter HK Danmark cases].
 Case C-354/13, supra note 3, ¶ 53 (emphasis added) (quoting CRPD, supra note 15, art. 2) (citing HK Danmark cases, supra note 16; Case C-363/12, Z. v. A Government Department, ECLI:EU:C:2014:159 (2014); Case C-356/12, Glatzel v. Freistaat, ECLI:EU:C:2014:350 (2014)).
 Case C-354/13, supra note 3, ¶ 54.
 See id. ¶ 60.
 Id. ¶¶ 63–64.
 Id. ¶ 39. For the reasoning, see Opinion of Advocate General, supra note 4, ¶¶ 19-27.
 Charter of Fundamental Rights of the European Union art. 21, Dec. 7, 2000, 2000 O.J. (C 364) 1 (entered into force Nov. 30, 2009).
 CRPD, supra note 15, art. 4.1(b), 4.1(e).
 E.g., Americans with Disabilities Act of 1990, 42 U.S.C. 126, § 12102(4)(C)(2012).