Request for a preliminary ruling from the Retten i Kolding (Denmark) lodged on 27 June 2013 – FOA, acting on behalf of Karsten Kaltoft v Billund Kommune

(Case C-354/13)

Language of the case: Danish

Referring court

Retten i Kolding

Parties to the main proceedings

Applicant: FOA, acting on behalf of Karsten Kaltoft

Defendant: Billund Kommune

Questions referred

Is it contrary to EU law as expressed, for example, in Article 6 TEU concerning fundamental rights, generally or particularly for a public-sector employer to discriminate on grounds of obesity in the labour market?

If there is an EU prohibition of discrimination on grounds of obesity, is it directly applicable as between a Danish citizen and his employer, a public authority?

Should the Court find that there is a prohibition under EU law of discrimination on grounds of obesity in the labour market generally or in particular for public-sector employers, is the assessment as to whether action has been taken contrary to a potential prohibition of discrimination on grounds of obesity in that case to be conducted with a shared burden of proof, with the result that the actual implementation of the prohibition in cases where proof of such discrimination has been made out requires that the burden of proof be placed on the respondent/defendant employer (see recital 18 in the preamble to Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex 1 )?

Can obesity be deemed to be a handicap covered by the protection provided for in Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation 2 and, if so, which criteria will be decisive for the assessment as to whether a person’s obesity means specifically that that person is protected by the prohibition of discrimination on grounds of handicap as laid down in that directive?

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1 OJ 1998 L 14, p. 6.

2 OJ 2000 L 303, p. 16.

Obesity can constitute a disability in certain circumstances, the EU's highest court has ruled.

The European Court of Justice was asked to consider the case of a male childminder in Denmark who says he was sacked for being too fat.

The court said that if obesity could hinder "full and effective participation" at work then it could count as a disability.

The ruling is binding across the EU.

Judges said that obesity in itself was not a disability - but if a person had a long-term impairment because of their obesity, then they would be protected by disability legislation

The message to employers is that they need to care about addressing obesity because it’s the right thing to do and because it ultimately affects organizational effectiveness and success. But addressing the issue begins with a com­plex question: is obesity a disability? The answer is tricky: sometimes obesity is a disability, and sometimes it isn’t.

“Canada is divided on the issue, with legislation varying by both provincial and federal jurisdictions, so there’s no standard definition or approach,” says Jacob Shelley, a CIHR Vanier Canada Graduate Scholar and Doctoral student in the Juridical Science program at the Faculty of Law, University of Toronto. The Supreme Court of Canada has defined obesity as a disability (even if it’s only a perceived disability), whereas the Ontario Human Rights Tribunal has drawn the distinction that obesity is a disability only if it’s “caused by” illness, injury or birth defect.