Case C-354/13 Kaltoft v Municipality of Billund –Can obesity be a disability under EU equality law?

By Sara Benedi Lahuerta

According to 2012 OECD data, 52% of EU adults are overweight or obese. It is thus not surprising that the recent decision of the Court of Justice of the European Union (CJEU) in Kaltoft (Case C-354/13), on whether obesity discrimination can amount to disability discrimination, has created quite a stir in the press. Following Advocate General (AG) Jääskinen’s Opinion, some media suggested that ‘Severe obesity is a disability’. As will be discussed in this post, the CJEU did not quite go as far as to accept that obesity is a disability, but it did recognise that, in some cases, differential treatment on the basis of obesity can amount to disability discrimination. Hence, this judgment marks another step forward towards clarifying the scope of EU equality law and bringing about a consistent application at national level.

Background

After having worked for 15 years as a ‘childminder’ in Billund (Denmark), and following a decline in the number of children requiring care, Mr Kaltoft was dismissed in November 2010. He had been severely obese during his whole career as a childminder, and on several occasions, his manager had showed interest in his efforts to lose weight. His obesity was also mentioned in a meeting where Mr Kaltoft inquired about the reason why he had been dismissed (yet both parties disagreed as to how it was mentioned). So the extent to which obesity was relevant for selecting Mr Kaltoft as the only childminder to be dismissed was uncertain, but Mr Kaltoft contended that he was dismissed on account of his morbid obesity and he brought an action before the Disctrict Court claiming that he had been discriminated against due to his weight.

The District Court submitted four questions to the CJEU, which could be summarised as the following two:

1. Does EU law prohibit discrimination on the ground of obesity?
2. Can obesity discrimination fall within the scope of the EU concept of disability discrimination under Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation?

On obesity as a free-standing discrimination ground

To answer the first question, the CJEU follows its Chacón Navas doctrine (Case C-13/05). While recognising the existence of an EU law general principle of non-discrimination, binding upon Member States (MS), the Court also notes that the exhaustive list of discrimination grounds in Article 1 of Directive 2000/78/EC cannot be extended by analogy. So in the same way as the Court declined to extend the list of protected grounds to ‘sickness’ in Chacón Navas, here it also declines to broaden it to include ‘obesity’, as it is not mentioned in the list of Article 1.

Rather unsurprisingly, the CJEU also dismisses the argument that discrimination on the ground of obesity is prohibited under Article 21 of the Charter of Fundamental Rights of the European Union (EU Charter), which establishes that ‘discrimination based on any ground such as (…) disability’ is prohibited. In this respect, it should be recalled that the EU Charter cannot extend the competences of the Union (Article 6(1) TFEU) and that it only applies to MS ‘when they are implementing EU law’ (Article 51(1) EU Charter). Therefore, reiterating its Åkerberg Fransson doctrine (Case C-617/10), the Court succinctly pointed out that the EU Charter was inapplicable in this case because obesity discrimination does not fall within the scope of EU law. By contrast, AG Jääskinen explained in much more detail why the EU Charter does not apply. Firstly, the general non-discrimination clause of Article 10 TFEU and the legal basis of Article 19 TFEU (enabling the EU to take action to combat discrimination) do not refer to obesity as a discrimination ground; so neither of these provisions can bring obesity discrimination within the scope of EU law. Secondly, the employment anti-discrimination Directives (Directive 2000/78/EC; Directive 2000/43/EC on the equal treatment between persons irrespective of racial or ethnic origin and Directive 2006/54/EC on the equal treatment of men and women in employment) do not refer to obesity either, and the fact that this case concerns an area falling within the Union’s competence (i.e. employment policy) ‘is an insufficient foundation for concluding that a Member State (…) is “implementing” EU law.’ Hence, even if the list of discrimination grounds in Article 21 of the EU Charter is open-ended, there is not a sufficient ‘degree of connection with EU law’ to consider obesity as a free-standing ground of discrimination on the basis of the EU Charter.

On whether obesity falls within the EU concept of ‘disability discrimination’

While recognising that ‘obesity’, as such, is not a ‘disability’ for the purposes of Directive 2000/78/EC, the CJEU analyses whether, under some circumstances, obesity could fall within the concept of disability developed in HK Danmark (Case-335/11). In that case, following the EU ratification of the 2009 UN Convention on the Rights of Persons with Disabilities , the Court defined ‘disability’ as ‘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’ (Kaltoft, para 53, citing HK Danmark, para 38).

In connection with this definition, the Court emphasises several principles emerging from HK Danmark and Z (Case C-363/12):

• The term ‘disability’ encompasses ‘not only the impossibility of exercising a professional activity, but also a hindrance to the exercise of such an activity’ (Kaltoft, para 54; Z, para 77).
• ‘Disability’ is an objective concept in that the focus is not on the origin of the disability, but rather on the limitating effects of the condition at stake (Kaltoft, paras 55-56; HK Danmark, para 40). On this point, the Court did not endorse AG Jääskinen’s Opinion, which seemed to suggest that employers are ‘entitled’ to expect obese employees to take active steps to mitigate that condition (AG Opinion, paras 58-59).
• However, the analysis of whether a person is disabled is subjective because it concerns the specific obstacles that the precise person faces to perform a particular work (Kaltoft, paras 59-60; HK Danmark, para 41; see similarly and more explicitly AG Opinion, para 44).
• Accommodation measures are not a ‘constituent element’ of the concept of disability (Kaltoft, para 57; HK Danmark, paras 45-46 ).

On this basis, the CJEU agrees with AG Jääskinen that, in some circumstances, obesity may hinder the full and effective participation of some persons in professional life on a long-term basis (e.g. if it leads to mobility problems), and in those cases, obesity discrimination can fall within the EU concept of ‘disability discrimination’. However, while AG Jääskinen suggested that ‘probably only’ morbid obesity will have such effects, the CJEU’s approach seems to encompass any type of obesity, provided the disability definition is met.

Assessment

The relevance of this case lies in the recognition, for the first time in EU law, that differential treatment on the basis of obesity can, depending on its effects on a person’s ability to work, fall within the scope of disability discrimination. However, this conclusion simply results from the application of prior CJEU case law to the present case. As such, the Kaltoft ruling does not really change or extend the prior concept of disability discrimination. Nevertheless, it is a remarkable judgment because it reduces legal uncertainty in this area by making explicit that, under some circumstances, obesity discrimination in employment can be a breach of EU law. This may bear important consequences in some MS, where prior national decisions had ruled out that differential treatment on the basis of obesity could fall within the scope of disability discrimination (see e.g. the Spanish case STSJ Comunidad Valenciana de 9 de mayo de 2012, AS/2012/1843). On the other hand, the Kaltoft ruling will have a more limited impact in other jurisdictions, where courts had already recognised that possibility (see e.g. the UK case Walker v Sita Information Networking Computing [2013] UKEAT 0097_12_0802). So while this is not a revolutionary judgment, it is a welcome step forward to ensure consistency in the application of the EU concept of disability discrimination at national level.