Could being overweight classify as a disability for discrimination law purposes? The question recently came before the Advocate General in the European Court of Justice (ECJ).

A Danish child-minder brought discrimination proceedings against his former employer after he was dismissed from his role, allegedly on account of his severe obesity which he claimed amounted to a disability. The Danish Court referred to the ECJ for clarification the question of whether obesity could amount to a disability under EU discrimination law.

The Advocate General found that there was no general principle protecting employees from discrimination on account of obesity. However, he did find that certain physical and psychological limitations arising out of obesity might fall within the meaning of “disability” under the Equal Treatment Directive (2000/78/EC) – if such limitations hindered full participation in professional life on an equal footing with other employees.

The Advocate General further found that it was most likely that only those with “morbid obesity” (i.e., class III of the World Health Organisation ranking system – BMI in excess of 40) could experience limitations that were significant enough to amount to a disability.

Case: FOA, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund C-354/13