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Is Obesity a disability? The Definition of Disability by the Court of Justice of the European Union and its Consequences for the Application of EU Anti-Discrimination Law

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Abstract

This paper examines the relevant issues pertaining to disability as defined by the Court of Justice of the European Union in light of the Kaltoft v Municipality of Billund case. It considers whether the Court’s application of the guidance on the meaning of disability in the UN CRPD is adequate for defining disability according to European Union anti-discrimination law. After discussing the concept of disability and the relevant CJEU’s jurisprudence, the paper examines the differences between European Union anti-discrimination law and European human rights law regarding non-discrimination, and explores the ways in which obese people could be protected against discrimination under European Union ant-discrimination law. It finally considers the practical and legal consequences of the Court’s application of the guidance on the meaning of disability in the UN CRPD.
381
CASE NOTE
IS OBESITY A DISABILITY? THE DEFINITION
OF DISABILITY BY THE COURT OF JUSTICE OF
THE EUROPEAN UNION AND ITS CONSEQUENCES FOR
THE APPLICATION OF EU ANTI-DISCRIMINATION LAW
Gauthier de Beco *
This paper examines the relevant issues pertaining to disabil-
ity as defined by the Court of Justice of the European Union in
light of the Kaltoft v. Municipality of Billund case. It consid-
ers whether the Court’s application of the guidance on the
meaning of disability in the UN CRPD is adequate for defin-
ing disability according to European Union anti-
discrimination law. After discussing the concept of disability
and the relevant CJEU’s jurisprudence, the paper examines
the differences between European Union anti-discrimination
law and European human rights law regarding non-
discrimination, and explores the ways in which obese people
could be protected against discrimination under European
Union ant-discrimination law. It finally considers the practi-
cal and legal consequences of the Court’s application of the
guidance on the meaning of disability in the UN CRPD.
INTRODUCTION ............................................................................ 381!
I. DEFINITION OF DISABILITY BY THE COURT OF
JUSTICE OF THE EUROPEAN UNION ............................... 383!
II. EU ANTI-DISCRIMINATION LAW AND EUROPEAN
HUMAN RIGHTS LAW ......................................................... 387!
III. OBESITY UNDER EU ANTI-DISCRIMINATION LAW .... 390!
IV. CJEU’S ADOPTION OF THE UN CRPD'S CONCEPT OF
DISABILITY ........................................................................... 394!
CONCLUSION ................................................................................ 400!
INTRODUCTION
Is obesity a disability? The question is of great practical relevance.
According to the Organisation for Economic Cooperation and Development
(OECD), eighteen percent of the adult population is obese; that is 35.3 percent
* Lecturer in Disability Law, University of Leeds. The author wishes to thank Anna Lawson
(University of Leeds), Oddný Arnardóttir (University of Iceland), Jerome Bickenbach (University of
Lucerne), Maria Ventegodt Liisberg (Danish Institute for Human Rights) and Paul Quinn (University
of Brussels) for their comments on an earlier version of this article.
382 COLUMBIA JOURNAL OF EUROPEAN LAW [VOL 22.2
in the United States and 24.7 percent in the United Kingdom.1 This affects
people with lower education and socio-economic status in particular and women
more than men.2 Obesity creates physical health problems, such as respiratory
difficulties, diabetes and cancer.3 It is also responsible for mental health
problems, including risks of depression and anxiety disorder.4 Obese people are
also subject to stereotypes and often discriminated against, especially in the
labor market.5
On December 18, 2014, in the case of Kaltoft v. Municipality of Billund, the
Court of Justice of the European Union (CJEU) ruled that obesity could
constitute a disability under European Union (EU) anti-discrimination law.6 The
case concerned the dismissal of a childminder, Mr. Kaltoft, from the
Municipality, which was brought before the District Court of Kolding by a trade
union on his behalf.7 He had been working for the Municipality for fifteen years
under a fixed-term contract and was given financial assistance to lose weight.8
Although his dismissal was prompted by a decrease in the number of children,
he argued that he was discriminated against due to his obesity.9 Both parties
agreed that he was obese, and Mr. Kaltoft was the only childminder to be
dismissed by the Municipality.10 The District Court of Kolding referred four
questions for a preliminary ruling to the CJEU,11 two of which were answered
by the Court: (1) Is obesity covered per se by EU anti-discrimination law? (2)
Does obesity fall under the definition of disability?12 The first question was
answered swiftly: EU anti-discrimination law does not cover obesity. The
second question received a wishy-washy answer: neither yes nor no.
According to the CJEU, obesity can be a disability under EU anti-
discrimination law when it creates a limitation which results in particular from
physical, mental or psychological impairments that in interaction with various
barriers may hinder the full and effective participation of [a] person in
professional life on an equal basis with other workers; this limitation must be
a long-term one.” 13 The CJEU thus used the concept of disability as
characterized by the United Nations Convention on the Rights of Persons with
The author wishes to thank Anna Lawson (University of Leeds), Oddný Arnardóttir (University
of Iceland), Jerome Bickenbach (University of Lucerne), Maria Ventegodt Liisberg (Danish Institute
for Human Rights) and Paul Quinn (University of Brussels) for their comments on an earlier version
of this article. All internet sites were last accessed on 28 September 2015.
1 Organisation for Economic Co-operation and Development, Obesity Update 2 (2014),
available at http://www.oecd.org/els/health-systems/Obesity-Update-2014.pdf.
2 Id. at 3.
3Wor ld Hea lt h Or ga nis at io n, Obesity and Overweight National Obesity 2 (2003), available at
http://www.who.int/dietphysicalactivity/media/en/gsfs_obesity.pdf.
4National Obesity Observatory, Obesity and Mental Health (2011), available at
http://www.noo.org.uk/uploads/doc/vid_10266_Obesity%20and%20mental%20health_FINAL_0703
11_MG.pdf.
5 Stuart Flint & Jeremé Snook, Obesity and Discrimination: The Next ‘Big Issue’?, 14 INT. J.
DISCR. LAW. 183, 18586 (2014).
6 Kaltoft v. Municipality of Billund, Case C- 354/13, EU:C:2014:2463, ¶ 59.
7 Id. ¶ 29.
8 Id. ¶ 15.
9 Id. ¶ 27.
10 Id. ¶ 18.
11 Kaltoft, EU:C:2014:2463, ¶ 30.
12 Id. ¶ 30.
13 Id. ¶ 59.
2016] IS OBESITY A DISABILITY? 383
Disabilities (UN CRPD) in the sphere of the labor market.14 The CJEU then
decided that it was up to the “the referring court to ascertain whether
[Mr. Kaltoft’s] obesity entailed a limitation which meets the conditions set out in
. . . [its] judgement.”15
The purpose of this paper is to examine the relevant issues pertaining to
disability as defined by the CJEU in light of the Kaltoft case. It aims to analyze
whether the approach to the UN CRPD's concept of disability is adequate for
defining disability according to EU anti-discrimination law, and whether it
allows domestic courts to decide whether an individual was treated unequally
due to his/her disability. To do so, the paper not only examines the guidance on
the meaning of disability in UN CRPD but also compares the approaches of both
EU anti-discrimination law and European human rights law. It goes beyond a
mere analysis of the present case and evaluates whether the CJEU's definition of
disability is suitable for applying EU anti-discrimination law.
The paper is divided into four parts. Part I examines the concept of
disability and discusses how the CJEU's definition of disability gradually
evolved. Part II examines the differences between EU anti-discrimination law
and European human rights law regarding non-discrimination. Part III examines
the absence of obesity in the discrimination grounds provided for by EU anti-
discrimination law and explores possible solutions for protecting obese people
against discrimination. Part IV considers the practical and legal consequences of
applying the guidance on the meaning of disability in the UN CRPD by
the CJEU.
I. DEFINITION OF DISABILITY BY THE COURT OF JUSTICE OF THE
EUROPEAN UNION
In order to define disability under EU anti-discrimination law, the CJEU
applied the guidance on the meaning of disability in the UN CRPD, while
restricting it to the area of employment and occupation. Article 1 of the UN
CRPD provides that disabled people include those who have long-term
physical, mental, intellectual or sensory impairments which in interaction with
various barriers may hinder their full and effective participation in society on an
equal basis with others.16 Recalling the EU’s con clusion of the Convention17
and referring to the Ring and Skouboe Werge case,18 it considered disability to be
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 workersin the case of Kaltoft.19 It also held that
disability comprises not only the impossibility of exercising a professional
activity, but also a hindrance to the exercise of such an activity.20
14 Convention on the Rights of Persons with Disabilities, Dec. 13, 2006, 46 I.L.M. 443 (2006)
[hereinafter UN CRPD].
15 Kaltoft, EU:C:2014:2463, ¶ 62.
16 See UN CRPD, supra note 14, at art. 1.
17 Council Decision 2010/48/EC, Concerning the Conclusion by the European Community of
the United Nations Convention on the Rights of Persons with Disabilities, 2009 O.J. (L 23) 35.
18 Ring & Skouboe Werge v. Dansk Arbejdsgiverforening, Joined Cases C-335/11 & C-337/11,
EU:C:2013:222, ¶ 21.
19 Kaltoft, EU:C:2014:2463, ¶ 53.
20 Id. ¶ 54.
384 COLUMBIA JOURNAL OF EUROPEAN LAW [VOL 22.2
The UN CRPD represents a paradigm shift in the concept of disability.
Moving away from the medical model of disability, the Convention regards
disability as a problem within society, thereby following the social model of
disability.21 The social model considers disability as a result of the interaction
between the impairments of disabled people and the obstacles to their full
participation in society. Originating in the United Kingdom, it was described for
the first time by the Union of the Physically Impaired against Segregation for
whom, “Disability is something imposed on top of our impairments, by the way
we are unnecessarily isolated and excluded from full participation in society.22
Disability is therefore related to the exclusion of disabled people and is a
consequence of societal organization.23 Its cause must not be looked for in the
individual but in the environment. 24 Rather than focusing on deficiencies,
disability is regarded as a social construct revolving around society itself and its
relationship with disabled people.25 It is therefore the environment which makes
people disabled if it fails to provide for equal treatment for those who have
impairments.
Although they do not embrace the social model of disability, several
national legislations define disability in broad terms. These include the
Americans with Disabilities Act (ADA) of 1990,26 which was a product of the
civil rights movement started in the 1970s27 and was subsequently replaced by
the ADA Amendments Act of 2008.28 While the former provided a definition
that was interpreted very narrowly by the domestic courts, as testified by several
cases before the United States Supreme Court, 29 the latter expanded this
definition as a reaction to these cases.30 The Irish Employment Act of 199831 and
New Zealand’s Human Rights Act of 199332 likewise adopt a broad approach to
the concept of disability.33
The social model of disability has had an impact on the development of
international human rights law. Concerned with the great exclusion of disabled
people from society, it had a considerable influence on the drafters of the UN
CRPD, who were eager to have an international legal instrument to fight against
their oppression.34 In view of this, the Convention aims not only to preserve the
dignity of disabled people, by providing them with optimal prospects for
21 Rosemary Kayess & Phillip French, Out of Darkness into Light? Introducing the Convention
on the Rights of Persons with Disabilities, 8 HUM. RTS. L. REV. 1, 24 (2008).
22 The Union of the Physically Impaired Against Segregation and the Disability Alliance
Discuss Fundamental Principles of Disability (October 1997), http://disability-
studies.leeds.ac.uk/files/library/UPIAS-fundamental-principles.pdf.
23 MICHAEL OLIVER, UNDERSTANDING DISABILITY: FROM THEORY TO PRACTICE 42–48
(Palgrave Macmillan ed., 2nd ed. 2009).
24 Id. at 45.
25 TOM SHAKESPEARE, DISABILITY RIGHTS AND WRONGS REVISITED 1213 (2nd ed., 2014).
26 Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 (2012).
27 ARIE RIMMERMAN, SOCIAL INCLUSION OF PEOPLE WITH DISABILITIES. NATIONAL AND
INTERNATIONAL PERSPECTIVES 2021 (Cambridge, 2013).
28 ADA Amendments Act. Pub. L. No. 110-325, 42 Stat. § 12101 (2008).
29 Murphy v. UPS, 527 U.S. 516 (1999); Sutton v. United Air Lines, 527 U.S. 471 (1999);
Bragdon v. Abbott, 524 U.S. 624 (1998).
30 Elizabeth Emmens, Disabling Attitudes: U.S. Disability Law and the ADA Amendments Act,
in THE DISABILITY STUDIES READER 42, 4547 (Lennard Davis ed., 4th ed. 2013).
31 Employment Act 1998 (Act. No. 21/1998) (Ir.).
32 Human Rights Act 1993, § 82 (N.Z.).
33 Theresia Degener, The Definition of Disability in German and Foreign Discrimination Law,
26 DISABILITIES STUD. Q. (2006), available at http://dsq-sds.org/article/view/696/873.
34 Kayess & French, supra note 34, at 2021.
2016] IS OBESITY A DISABILITY? 385
autonomy, but also to abolish the various mechanisms that exclude these people.
It therefore focuses on the environment that prevents disabled people from being
included in society.
The CJEU did not apply the guidance on the meaning of disability in the
UN CRPD immediately. In the Chacón Navas case, a woman had been ill and
was unable to work for a long period of time. 35 As allowed by national
legislation, her employer dismissed her after a short notice following her return
to work. The Court decided that disability was to be considered as a limitation
which results in particular from physical, mental or psychological impairments
and which hinders the participation of the person concerned in professional
life.36 This definition was criticized because it reflected the medical model of
disability.37 Not only did it require actual hindrance for the full participation of
disabled people in society but it also failed to acknowledge that such hindrance
might result from the interaction between their impairment and the obstacles to
their participation.38 Contrary to the social model, it located disability within the
individual and not within the environment. The CJEU's definition of disability
was all the more surprising, since the EU had signed the UN CRPD and since
EU policies, such as the European Disability Action Plan 2003-2010,39 had
already adopted the social model of disability.40 The Court also ruled that
disability had to be distinguished from sickness, which is not covered by EU
anti-discrimination law.41 In the Coleman case, a mother of a disabled child
alleged that she had been treated unfairly when coming back to work after her
maternity leave.42 Having cared for the child in question, she was bullied and
even threatened with dismissal before she resigned from her job.43 Noting its
definition of disability in the Chacón Navas case, the CJEU considered that this
definition should not be interpreted too strictlyand could apply to a situation
[. . .] where the less favourable treatment which an employee claims to have
suffered is on the grounds of the disability of his child”.44 While the Court still
based the definition of disability on the medical model of disability, possibly
inspired by the civil rights perspective of the ADA,45 it extended the definition
to persons associated with disabled people. 46 The Court also decided that
35 Chacón Navas v. Eurest Colectividades SA, Case 13/05, EU:C:2006:456, ¶ 43.
36 Id. 43.
37 Lisa Waddington, Equal to the Task? Re-examining EU Equality Law in Light of the United
Nation Convention on the Rights of Persons with Disabilities, 4 EUR. YEARBOOK DISABILITY L. 169,
18586 (2013).
38 Anna Lawson, Disability and Employment in the European Union: Collective Strategies and
Too l , in DISABILITY AND EQUITY AT WORK 391, 401 (Jody Heymann et. al. eds., 2014).
39 The European Disability Action Plan 2004-2010 provided that “[t]he EU also sees disability
as a social construct. The EU social model of disability stresses the environmental barriers in society
which prevent the full participation of people with disabilities in society.” Communication from the
Commission to the Council, the European Parliament, The European Economic and Social
Committee and the Committee of the Regions Equal Opportunities for People with Disabilities: A
European Action Plan, at 4, COM (2003) 650 final (October 30, 2003).
40 Mark Priestley, In Search of European Disability Policy: Between National and Global, 1
EUR. J. OF DISABILITY RES. 61, 68 (2007).
41 Chacón Navas, EU:C:2006:456, ¶ 44.
42 Coleman v. Attridge Law, Case 303/06, EU:C:2008:415, ¶4546.
43 Id. ¶ 26.
44 Id. ¶¶ 4546.
45 Gerard Quinn & Eilionóir Flynn, Transa tlan tic Bor rowi ngs: The Past and Fut ure o f E U No n-
Discrimination Law and Policy on the Ground of Disability, 60 AM. J. COMP. L. 23, 44-45 (2012).
46 This interpretation had an influence on International Human Rights Law, since it was
subsequently taken over by the Committee on Economic, Social and Cultural. Aart Hendriks, The
UN Disability Convention and (Multiple) Discrimination: Should EU Non-Discrimination Law Be
386 COLUMBIA JOURNAL OF EUROPEAN LAW [VOL 22.2
harassment could apply to those who are not themselves disabled.47 Eventually,
in the Ring and Skouboe Werge case, which the CJEU referenced in the Kaltoft
case, the Court departed from its former case law and changed its approach to
the concept of disability. 48 The case concerned a woman who suffered
untreatable lumbar pain and another who had been injured in a traffic accident.49
After returning from sick leave, they were dismissed on short notice, because
they were no longer able to work full-time.50 The Court held not only that
disability had to be defined in light of Article 1 of the UN CRPD, but also that
refusal to provide the women with reasonable accommodation amounted to
discrimination.51 In so doing, it confirmed its intention not to interpret disability
too strictly”, 52 bearing in mind that the EU had meanwhile concluded the
Convention. It also decided that an individual who is able to work part-time
could still be regarded as disabled and that disability should not be understood
only as an impossibility but also as a hindrance to work.53 Moreover, it held that
reasonable accommodation could include a reduction in working hours.54 It thus
brought EU anti-discrimination law closer to international human rights law in
two ways, by applying the concept of disability as characterized by the UN
CRPD, and by regarding failure to provide reasonable accommodation as
discriminationwhich is not explicitly spelled out in EU anti-
discrimination law.55
By applying the guidance on the meaning of disability in the UN CRPD, the
CJEU is applying the approach of international human rights law. The EU’s
conclusion of the UN CRPD explains to a large extent the Convention’s
influence on the interpretation of EU anti-discrimination law.56 The Court
nonetheless went on to restrict the application of the guidance on the meaning of
disability in the UN CRPD to the sphere of the labor market, as it had already
done in the Ring and Skouboe Werge case, because the material scope of the
prohibition of discrimination on the basis of disability under EU anti-
discrimination law is limited to the areas of employment and occupation.
Although it provided the same definition of disability in the Kaltoft case, the
Court nonetheless proceeded somewhat differently in this case in contrast to its
previous disability judgments. It did not rule whether the applicant had a
disability according to EU anti-discrimination law, but left this up to the
domestic court to decide.57 Moreover, the question was not whether reasonable
accommodation had to be provided to the plaintiff, since Mr. Kaltoft did not
request any adaptations to his working environment and since he claimed that
Modelled Accordingly?, in 2 EUROPEAN YEARBOOK OF DISABILITY LAW 7, 1920 (Lisa Waddington
& Gerard Quinn eds., 2010) (discussing Coleman).
47 Coleman, EU:C:2008:415, ¶ 63.
48 Ring, EU:C:2013:222, ¶6568.
49 Id. ¶¶ 15, 18.
50 Id. ¶¶ 16, 21.
51 Id. ¶¶ 6568.
52 Coleman, EU:C:2008:415, ¶ 46.
53 Ring, EU:C:2013:222, ¶ 44.
54 Id. ¶¶ 44, 57.
55 While Article 5 of the Directive 2000/78/EC provides that “reasonable accommodation shall
be provided,” it does not stipulate that a failure to make such accommodation amounts to
discrimination. By declaring that failure to provide reasonable accommodation is discrimination, the
CJEU has put an end to this controversy. Council Directive 2000/78/EC, Establishing a General
Framework for Equal Treatment in Employment and Occupation, art. 5, 2000 O.J. (L 303) 16.
56 See infra Part IV for further discussion.
57 Kaltoft, EU:C:2014:2463, ¶ 62.
2016] IS OBESITY A DISABILITY? 387
his obesity had no impact on his job performance.58 The only issue at stake
therefore was whether obesity legally falls under the definition of disability and
whether his dismissal could be regarded as discrimination on the basis of
disability under EU anti-discrimination law.
In order to evaluate whether EU anti-discrimination law prohibits
discrimination on the basis of obesity, and how it would be possible to protect
obese people against discrimination, it is first necessary to understand the
differences between EU anti-discrimination law and European human rights law.
Knowing these differences is especially important considering not only the EU's
conclusion of the UN CRPD but also its commitment to accede to the European
Convention on Human Rights in the Treaty of Lisbon,59 although the CJEU
recently concluded to the illegality of the draft accession instrument.60
II. EU ANTI-DISCRIMINATION LAW AND
EUROPEAN HUMAN RIGHTS LAW
There is a significant overlap between EU anti-discrimination law and
European human rights law, but they bear some important differences. Both
provide for protection against discrimination on the basis of disability, although
the way in which they do varies to some extent.
The EU is a regional organization which was originally created in order to
achieve economic integration.61 The prohibition of discrimination, however, has
acquired importance beyond this and equal treatment is now considered an
essential element for furthering social cohesion within EU Member States.62 The
EU is a supranational organization and has the power to enact legislation and
enforce the CJEU’s case law in the area of non-discrimination.
Article 19 of the Treaty on the Functioning of the European Union (TFEU)
provides the EU with the power to take appropriate action to combat
discrimination based on sex, racial or ethnic origin, religion or belief, disability,
age or sexual orientation.63 On this basis, the EU adopted various equality
directives forming together EU anti-discrimination law. This includes Directive
2000/78/EC,64 which prohibits discrimination on the basis of religion or belief,
disability, age or sexual orientation in the areas of employment and occupation,
58 To t he BBC , M r. Kal tof t d en ied t hat h e w as u nab le to tie t he chi ld ren ’s s ho ela ces a nd
considered that he was not disabled. See Clive Coleman, Obesity ‘Could be a Disability’ EU
Courts Rule, BBC NEWS (Dec. 18, 2014), http://www.bbc.com/news/health-3052971.
59 Treaty of Lisbon Amending the Treaty on European U nion and the Treaty Establishing the
European Community, art. 6(2), Dec. 13, 2007, 2007 O.J. (C 306) 1 [hereinafter TEU]. Protocol 14
to the ECHR also provides for the accession of the EU to the Convention. Convention for the
Protection of Human Rights and Fundamental Freedoms, art. 17(1), Nov. 4, 1950, Europ. T.S. No. 5
(1950).
60 Opinion 2/13, EU:C:2014:2454.
61 PAUL CRAIG & GRÁINNE DE BÚRCA, EU LAW : TEXT, CASES AND MATERIALS 3-6 (3rd ed.
Oxford, 2003).
62 See Allan Rosas, The European Union and Fundamental Rights/Human Rights, in
INTERNATIONAL PROTECTION OF HUMAN RIGHTS: A TEXTBOOK 441 (Catarina Krause & Martin
Scheinin eds, 2009); Sionaidh Douglas-Scott, The European Union and Human Rights after the
Treaty of Lisbon, 11 HUM. RTS. L. REV. 658 (2011).
63 Treaty on the Functioning of the European Union, art. 19, Dec. 26, 2012, 2012 O.J . (C 326) 1
[hereinafter TFEU].
64 Directive 2000/78/EC, supra note 55.
388 COLUMBIA JOURNAL OF EUROPEAN LAW [VOL 22.2
and which recognizes the duty of employers to provide reasonable
accommodation to disabled people.65
As with the other equality directives,66 Directive 2000/78/EC provides for
an exhaustive list of discrimination grounds (religion or belief, disability, age,
and sexual orientation) which apply to a limited number of areas (employment
and occupation).67 EU anti-discrimination law thus operates according to single
separate categories. Although this can be very effective where an individual
belongs to the group targeted by a particular discrimination ground, it can be
rather restrictive in the case of individuals whose identities are shaped by
multiple characteristics.68 Furthermore, it explicitly distinguishes between direct
and indirect discrimination.69 It has a closed system of justification for direct
discrimination (other than on the basis of age) with a limited series of exceptions
per discrimination ground, and a strong enforcement system, including strict
rules for the burden of proof and specific sanctions for discrimination.70 It also
applies in cases between private parties, and therefore requires that EU Member
States prohibit individuals from discriminating against others.71
In order to equip itself with its own bill of rights, the EU moreover adopted
the EU Charter of Fundamental Rights on December 7, 2000. It became legally
binding with the Treaty of Lisbon. 72 Article 21(1) of the EU Charter of
Fundamental Rights provides for the prohibition of discrimination in a very
similar way to Article 14 of the ECHR, which will be discussed below, although
it covers some additional discrimination grounds, including disability.73 The
Charter is nonetheless only applicable to EU Member States when they are
implementing [EU] law.74 As indicated by the CJEU, the situation must fall in
65 Id. art. 5.
66 European Parliament and Council Directive 2006/54/EC, On the Implementation of the
Principle of Equal Opportunities and Equal Treatment of Men and Women in Matters of
Employment and Occupation (recast), 2006 O.J. (L 204) 23; Council Directive 2004/113/EC,
Implementing the Principle of Equal Treatment Between Men and Women in the Access to and
Supply of Goods and Services, 2004 O.J. (L 373) 37; Council Directive 2000/43/EC, Implementing
the Principle of Equal Treatment Between Persons Irrespective of Racial or Ethnic Origin, 2000 O.J.
(L 180) 22.
67 Directive 2000/78/EC, supra note 55, at art. 1.
68 Hendriks, supra note 46, at 1415; Paola Uccellari, Multiple Discrimination: How Law Can
Reflect Reality, 1 EQUAL RTS. REV. 24, 24 (2008).
69 Directive 2000/78/EC, supra note 55, at art. 2(1); Directive 2000/43/EC, supra note 66, at
art. 2(1); Council Directive 2004/113/EC, Implementing the Principle of Equal Treatment Between
Men and Women in the Access to and Supply of Goods and Services, art. 2(a) and (b), 2004 O.J.
(L373) 37; Directive 2006/54/EC, on the Implementation of the Principle of Equal Opportunities and
Equal Treatment of Men and Women in Matters of Employment and Occupation, art. 2(1)(a) and (b),
2006 O.J. (L180) 22.
70 Directive 2000/78/EC, art. 2(2), 2(5), 4(12), 911; Directive 2000/43/EC, art. 2(2), 4, 79;
Directive 2004/113/EC, art. 4(1), 4(5), 810; Directive 2006/54/EC, art. 2(1), 14(2), 1920.
71 Directive 2000/78/EC, art. 3(1), Directive 2000/43/EC, art. 3(1); Directive 2004/113/EC, art.
3(1), Directive 2006/54/EC, art. 14(1).
72 See TEU, supra note 59, art. 6(1).
73 Article 21(1) of the EU Charter of Fundamental Rights provides that “[a]ny discrimination
based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language,
religion or belief, political or any other opinion, membership of a national minority, property, birth,
disability, age or sexual orientation shall be prohibited.” Charter of Fundamental Rights of the
European Union, Dec. 12, 2007, 2007 O.J. (C 303) 1 [hereinafter Charter].
74 Id. art. 51(1).
2016] IS OBESITY A DISABILITY? 389
the scope of EU law,” that this that it has to concern an area that is governed by
EU law.75
On the other hand, the Council of Europe is a regional organization the aims
of which are to promote human rights, democracy, and the rule of law.76 The
European Convention on Human Rights (ECHR) includes a prohibition of
discrimination in Article 14 and its protection is guaranteed by the European
Court of Human Rights.77 Because of its inter-governmental character, the
Council of Europe depends on cooperation and the goodwill of its Member
States to execute the Court’s case law relating to this prohibition.
Article 14 prescribes that discrimination on any ground such as sex, race,
colour, language, religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status is
prohibited.78 In contrast to EU anti-discrimination law, the ECHR provides for
an open list of discrimination grounds (which may therefore include disability).
Article 14 of the ECHR also applies to all rights . . . set forth in [the]
Convention.79 Although the prohibition of discrimination is an accessory right,
it is autonomous, since its violation does not depend on a violation of the
aforementioned rights.80 It has therefore a very broad material scope. However,
the prohibition of discrimination has an open system of justification, which
provides a greater margin of appreciation to the Member States of the Council of
Europe. A different treatment is allowed, if it has an objective and reasonable
justification.81 The European Court of Human Rights has nonetheless ruled that
certain discrimination grounds, including disability, are more suspect than
others, because they are related to personal characteristics and because they fall
outside of an individual’s autonomy.82 Unequal treatment based on such grounds
has to be justified by particularly weighty reasons, which in most cases is
unlikely to be achieved for the Council of Europe’s Member States.83
Protocol No. 12 to the ECHR further enlarges the material scope of Article
14. 84 It creates a free-standing prohibition of discrimination, although it is
75 Åklagaren v. Hans Åkerberg Fransson, Case C-617/10, EU:C:2013:105, ¶ 19.
76 Krzysztof Drzewicki, European Systems for the Promotion and Protection of Human Rights,
in INTERNATIONAL PROTECTION OF HUMAN RIGHTS: A TEXTBOOK 368 (Catarina Krause & Martin
Scheinin eds, 2009).
77 European Convention on Human Rights, Nov. 14, 1950, 213 U.N.T.S. 221 [hereinafter
ECHR], art. 32.
78 Id. art. 14.
79 Id. art. 14.
80 Rasmussen v. Denmark, app. no 52562/99 & 52620/99),
CE:ECHR:1984:1128JUD000877779, ¶ 29, available at http://hudoc.echr.coe.int/eng?i=001-72015.
This has been confirmed in the Court’s subsequent case law. See Oddný Arnardóttir, Equality and
Non-Discrimination under the European Convention on Human Rights, 50 SCANDANAVIAN STUD. L.
14, 26 (2007) (containing list of relevant cases).
81 According to the Court’s case law, this requires that it pursues “a legitimate aim” and that
“reasonable relationship of proportionality between the means employed and the aim sought to be
realised.” See Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in
Belgium v. Belgium, CE:ECHR:1967:0209JUD000147462, 10; Abdulaziz, Cabales, and
Balkandali v. United Kingdom, CE:ECHR:1985:0528JUD000921480, 72.
82 Janneke Gerards, The Discrimination Grounds of Article 14 of the European Convention on
Human Rights, 13 HUM. RTS. L. REV. 99, 11314 (2013).
83 Janneke Gerards, Discrimination Grounds, in CASES, MATERIALS AND TEXT ON NATIONAL,
SUPRANATIONAL AND INTERNATIONAL NON-DISCRIMINATION LAW: IUS COMMUNE CASEBOOKS FOR
THE COMMON LAW OF EUROPE 33 (Dagmar Schiek, et. al, eds, 2007).
84 Protocol 12 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, Apr. 1, 2005, C.E.T.S. 177 (2005).
390 COLUMBIA JOURNAL OF EUROPEAN LAW [VOL 22.2
restricted to any right set forth by law.85 Protocol No. 12 has, however, only
nineteen ratifications to date86 and does not apply to private parties unless they
are offering public goods or services.87 This is in line with the ECHR itself,
which likewise only binds the Council of Europes Member States.
III. OBESITY UNDER EU ANTI-DISCRIMINATION LAW
EU anti-discrimination law does not prohibit discrimination on the basis of
obesity. As mentioned before, it provides an exhaustive list of discrimination
grounds, which does not include obesity. As indicated by the CJEU in the
Kaltoft case, Directive 2000/78/EC does not mention obesity as a ground for
discriminationand obesity cannot as such be regarded as a ground in addition
to those in relation to which [it] prohibits discrimination.88 Therefore, the only
way to protect obese people against discrimination in the labor market is to use
the related ground of disability. The same happens with transgender people who
have to rely on sex discrimination to claim protection.89 This solution is
inadequate, because it requires proving that the discrimination results from
factors that do not always directly relate to the unprotected ground in question.
Considering the growing occurrence of obesity, the absence of obesity in the
discrimination grounds provided for by EU anti-discrimination law is
problematic.
There are two imaginable solutions to the problem. The first one would be
to expand EU anti-discrimination law so as to include other relevant
discrimination grounds, bearing in mind societal developments.90 Obesity
concerns weight, which is a physical characteristic relating to appearance.91 It
also leads to physical and mental health problems in addition to stereotypes and
discrimination, factors that might bring on disability. There is therefore a
substantial overlap between obesity and disability, which is why the UN CRPD
is especially relevant to obese people. The list of discrimination grounds could
therefore be broadened to include physical characteristic or appearance. The
latter is explicitly listed in two EU Member States’ national legislation, namely
Belgium’s General Federal Anti-Discrimination Act of 2007 (which includes
physical characteristic)92 and the French Labor Code (which includes physical
85 Id. art. 1(1).
86 Among EU Member States, this includes Croatia, Finland, Luxembourg, the Netherlands,
Romania, Slovenia, and Spain. See Chart of Signatures and Ratifications of Treaty 177, Protocol No.
12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (last accessed
Feb. 13, 2016), http://conventions.coe.int/Treaty/Commun/ChercheSig.asp.
87 EU Fundamental Rights Agency, HANDBOOK ON EUROPEAN NON-DISCRIMINATION LAW 6
(2011); Gauthier de Beco, Le Protocole n° 12 à la Convention européenne des droits de l’homme, 83
REVUE TRIMESTRIELLE DES DROITS DE LHOMME 591, 60910 (2010).
88 Kaltoft, EU:C:2014:2463, ¶35, 37.
89 Christa To ble r, Equality and Non-Discrimination under the ECHR and EU Law, 74
ZEITSCHRIFT FÜR AUSLÄNDISCHES ÖFFENTLICHES RECHT UND VÖLKERRECHT 521, 544–45 (2014).
90 In the absence of such grounds, one has to fall back on the general principle of equality. This
was argued with age, discrimination on the basis of which would be prohibited by that principle even
before EU anti-discrimination law came into being. See Opinion of Advocate General Sharpston,
Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH, Case C-427/06, EU:C:2008:297, ¶
5257.
91 Iyiola Solanke, A Legal Remedy for Corpulent Women of Colour, in EUROPEAN UNION NON-
DISCRIMINATION LAW A ND INTERSECTIONALITY. INVESTIGATING THE TRIANGLE OF RACIAL,
GENDER AND DISABILITY DISCRIMINATION 217 (Dagmar Schiek & Anna Lawson eds., 2011).
92 General Federal Anti-Discrimination Act, BELGISCH STAATSBLAD [B.S.] [OFFICIAL
GAZETTE OF BELGIUM], May 30, 2007, 3rd ed. art. 3 (Belg.).
2016] IS OBESITY A DISABILITY? 391
appearance).93 This ground would cover not only those physical characteristics
that are (usually) regarded as a disability, like malformation or amputation, but
also those that are (usually) not, like baldness or ugliness. There would be a new
ground that would cover issues relating to the body that would not necessarily
be an impairment. In contrast to disability, physical characteristic or appearance
would require no kind of impairment for claiming protection against
discrimination.
Ideally, there should be a single piece of legislation covering all grounds of
discrimination, including physical characteristic or appearance, but also other
missing ones like gender identity. Since the list of discrimination grounds might
have to be expanded in the future, a non-exhaustive list makes more sense, as is
the case in the national legislation of several EU Member States, like Latvia’s
Labor Law,94 or Slovenia’s Employment Relationship Act of 2002.95 This would
make it easier to challenge the different forms of discrimination and diminish
reliance on indirect discrimination.96 Such a radical transformation, however,
would hardly be compatible with the current equality legal framework.97 An
open list of discrimination grounds would indeed involve modifying the
justification system of EU anti-discrimination law. This system would have to be
open, as is the case with Article 14 of the ECHR, since the list of discrimination
grounds would be illustrative only. The advantage in that case is that it would
not be as necessary to provide a clear definition for the various grounds of
discrimination.98 In doing so, the CJEU would have greater flexibility to define
disability according to EU anti-discrimination law. A list of suspected grounds
could nonetheless be established for which only very weighty reasonswould
justify different treatment, as done by the European Court of Human Rights.
This list could perhaps include the grounds currently mentioned in Article 19 of
the TFEU (except age), since all of them have more or less been recognized as
suspect by the European Court of Human Rights, and since their inclusion in EU
anti-discrimination law reflects strong social disapproval in Europe.
As this hypothetical reworking of EU anti-discrimination law demonstrates,
the obstacles are significant. To sta rt wi th, combating discrimination is a shared
competence,99 which means that EU Member States may choose to act on their
own to exercise it. In any event, if they decide to amend EU anti-discrimination
law, safeguards would be necessary so as not to lose the benefits of the closed
system of justification. This could be achieved through a closed system of
justification for specific discrimination grounds and an open system for the other
ones, although a strict application of an open CJEU justification system would
potentially lead to the same result. Still, there remains a degree of uncertainty
about whether all the discrimination grounds mentioned in the equality
directives can be regarded at any time as suspect.100 This would affect the clarity
of EU anti-discrimination law and probably face strong resistance from the
93 CODE DU TRAVAIL (C. TRAV) (LABOR CODE) art. L. 1132-1 (Fr.).
94 Labour Law L.V.A. L-60599, art. 7(2) (2001) (Lat.)
95 Employment Relationship Act Ur. l. R.S. 42, art. 6(1) (2000) (Slovn.).
96 Oddný Arnardóttir, The Differences that Make a Difference: Recent Developments on the
Discrimination Grounds and the Margin of Appreciation under Article 14 ECHR, 14 HUM. RTS. L.
REV. 647, 667 (2014).
97 Gerards, supra note 83, at 183.
98 Id. at 3940.
99 See TFEU, supra note 63, at art. 4.
100 See Gerards, supra note 83, at 90 (regarding, for instance, sexual orientation).
392 COLUMBIA JOURNAL OF EUROPEAN LAW [VOL 22.2
groups targeted by the current discrimination grounds provided for by EU anti-
discrimination law. The entire task of creating a coherent equality legal
framework would eventually rest with the CJEU. The question is also whether
the material scope would have to be limited to the areas of employment and
occupation or whether it should be expanded to other areas falling within the
EU’s competences. EU anti-discrimination law has a different ambit depending
on the discrimination grounds it covers. While Directive 2000/43/EC prohibits
discrimination on the basis of race or ethnic origin in the areas of access to
goods and services as well as employment, occupation and social security, and
Directive 2004/113/EC and Directive 2006/54/EC on the basis of gender in the
areas of access to goods and services as well as employment, occupation and
social security,101 Directive 2006/54/EC does so on the basis of religion or
belief, disability, age or sexual orientation only in the areas of employment and
occupation.102 This issue has already been the subject of a debate that ended in
disagreement. A proposal for an overall Equal Treatment Directive by the
European Commission to resemble and harmonize” EU anti-discrimination law
is currently blocked.103 The simple initiative to broaden the material scope of
Directive 2000/78/EC to other areas appears to be unsuccessful.104
The second solution to the problem would be to incorporate European
human rights law into EU law. This is among others the purpose of the EU’s
accession to the ECHR. While the CJEU accepted a long time ago that the rights
guaranteed by this Convention are part of the general principles of EU law,105
this would ensure that the latter is applied in conformity with the ECHR,
including the prohibition of discrimination in Article 14. In this way, the EU
would be bound to respect the Convention and, more significantly, fall under the
judicial supervision of the European Court of Human Rights.
Difficulties nonetheless remain. The negotiation process requires an
international agreement between the EU and the Council of Europe (including
all the EU Member States). This process is difficult and contains both legal and
political challenges. Recently, the CJEU issued an opinion in which it
considered that the draft accession instrument was incompatible with primary
EU law regarding several points, 106 thereby complicating the negotiation
process. In any case, were accession to take place, the list of discrimination
grounds provided for by EU anti-discrimination law would still not be expanded,
since the Convention will not affect the EU’s competences. Article 19 of the
101 See Directive 2000/43/EC, art. 1; Directive 2004/113/EC, art. 1; Directive 2006/54/EC,
art. 1.
102 See Directive 2000/78/EC, art. 1.
103 European Commission, Proposal for a Directive on Implementing the Principle of Equal
Treatment Between Persons Irrespective of Religion or Belief, Disability, Age, or Sexual
Orientation, COM (2008) 426 final. See generally Mark Bell, Advancing EU Anti-Discrimination
Law: The European Commission’s 2008 Proposal for a New Directive, 3 EQUAL RTS. REV. 7 (2009);
Lisa Waddington, Future Prospects for EU Equality Law: Lessons to be Learnt from the Proposed
Equal Treatment Directive, 36 EUR. L. REV. 163 (2011).
104 This expansion would however have the consequence of making gender the least well-
protected discrimination ground under EU Anti-Discrimination Law, because the prohibition of
discrimination on the basis of gender would be the only ground not applying to the area of education.
See Bell, supra note 103, at 9.
105 See Alan Rosas, The European Union and Fundamental Rights/Human Rights, in
INTERNATIONAL PROTECTION OF HUMAN RIGHTS: A TEXTBOOK 45254 (Catarina Krause & Martin
Scheinin eds, 2009).
106 Opinion 2/13, EU:C:2014:2454.
2016] IS OBESITY A DISABILITY? 393
TFEU does not refer to discrimination grounds other than sex, racial or ethnic
origin, religion or belief, disability, age or sexual orientation.107 Although
Article 14 of the ECHR may have greater influence on the interpretation of EU
anti-discrimination law and an impact on its future development,108 EU primary
law will not be affected by the EU’s accession to the Convention. The latter,
therefore, would provide no way of addressing cases of discrimination on the
basis of obesity, at least not immediately. However, given that cases may
subsequently be brought to the attention of the European Court of Human
Rights, the CJEU might try to interpret the equality directives more flexibly in
order to avoid significant inconsistencies with the Strasbourg Court’s case law,
although it has also been argued that it may very well be the other way
around.109 In whatever direction it goes, both courts will have to bring their
case law relating to the prohibition of discrimination closer to each other and
ensure consistency between their decisions110 regardless of the EU’s accession to
the ECHR. It is important to note though that the autonomous interpretation of
EU law will no longer apply to those rights that are protected by the ECHR
following accession.111 As a result, the definition of the different discrimination
grounds according to EU anti-discrimination law will have to be similar to that
according to the ECHR. For this reason, there is an even greater urgency to
harmonize the interpretation of EU anti-discrimination law and Article 14 of the
ECHR. Bearing this in mind, the CJEU raised its concern that, following the
EU’s accession to the ECHR, the European Court of Human Rights would be
able to question its case law and that doing so would affect the autonomy of EU
law.112 As a result, the EU might have to review its anti-discrimination law for
the longer term.
The EU Charter of Fundamental Rights, which like Article 14 of the ECHR
provides for an open list of discrimination grounds, would likewise not affect the
EU’s competences in principle.113 As the Advocate General in the Kaltoft case
pointed out, the Charter only binds Member States when a situation falls in the
scope of EU law,while EU anti-discrimination law provides for an exhaustive
list of discrimination grounds.114 However, since the Charter has now the same
value as the Treaties’ and has therefore become part of EU primary law,115 the
equality directives must be applied in light of the Charter. The prohibition of
discrimination in Article 21(1) of the EU Charter of Fundamental Rights could
therefore be a source of inspiration for interpreting EU anti-discrimination
law.116 While waiting for the EU’s accession to the ECHR, the Charter could
provide some remedy for the absence of physical characteristic or appearance in
107 See TFEU, supra note 63, art. 19.
108 Arnardóttir, supra note 96, at 66869.
109 Gerards, supra note 82, at 102.
110 Samantha Besson, Gender Discrimination under EU and ECHR Law: Never Shall the Twain
Meet?, 8 HUM. RTS. L. REV. 647, 67779 (2008).
111 Paul Craig, EU Accession to the ECHR: Competence, Procedure and Substance, 36
FORDHAM INT'L L. J. 1114, 114546 (2013).
112 Opinion 2/13, EU:C:2014:2454, ¶18186.
113 See Charter, supra note 73, at art. 51(2).
114 Opinion of Advocate General Jääskinen, Kaltoft v. Municipality of Billund, Case C- 354/13,
EU:C:2014:2463, ¶¶ 2025.
115 See Charter, supra note 73, at art. 6(1).
116 See Charter, supra note 73, at art. 21(1) ( “[a]ny discrimination based on any ground such as
sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any
other opinion, membership of a national minority, property, birth, disability, age or sexual orientation
shall be prohibited.”).
394 COLUMBIA JOURNAL OF EUROPEAN LAW [VOL 22.2
the discrimination grounds provided for by EU anti-discrimination law. What is
more, the CJEU has recently been willing to refer to the EU Charter of
Fundamental Rights in non-harmonised areas.117 In view of this, it is indeed
surprising that the Charter was barely mentioned in the Kaltoft case. 118 Its
absence may indeed reveal the limited impact it is having on the Court’s
interpretation of EU anti-discrimination law.
IV. CJEU’S ADOPTION OF THE UN CRPD'S CONCEPT OF DISABILITY
While not all EU Member States had ratified the UN CRPD,119 the EU
acceded to it on December 23, 2010,120 which was the first time it adhered to a
human rights treaty. It also declared which areas it would be competent for,121 as
required by Article 44(1) of the Convention.122 Although the UN CRPD will not
lead to an extension of the EU’s competences, it can have a considerable impact
on the interpretation of EU anti-discrimination law. The EU admittedly will not
be required to adapt its anti-discrimination legislation, especially since
combating discrimination is a shared competence and therefore it is in principle
up to EU Member States to ensure compliance with the UN CRPD, even though
doing so through the EU would be preferable in order to avoid variations in the
implementation of the Convention by those States. 123 Meanwhile, EU
institutions will have to interpret EU anti-discrimination law in conformity with
the UN CRPD to which the EU has become one of the States Parties.
In view of this, the UN CRPD has been an inspiration to the CJEU. While
the Court did not use the Convention's characterization of the concept of
disability in the Chacón Navas case, it did so subsequently in the Ring and
Skouboe Werge case. As explained in Part I, not only did the Court apply the
guidance on the meaning of disability in the UN CRPD but it also ruled that
employers have to provide reasonable accommodation for disabled people. By
doing so, the CJEU applied the Convention's approach to the concept of
disability albeit only in the sphere of the labor market, since Directive
2000/78/EC only applies to the areas of employment and occupation. Although
this can be seen as an indirect consequence of the EU’s conclusion of the UN
CRPD,124 the Court thus appears to have taken a step back from its concerns for
117 Blanka Soukupová v. Ministerstvozemědělství, Case C-401/11, EU:C:2013:223, ¶ 28 (the
CJEU considered, for instance, that EU Member States have to respect the prohibition of
discrimination in the implementation of Council Regulation (EC) No 1257/1999 of 17 May 1999 on
support for rural development from the European Agricultural Guidance and Guarantee Fund
(EAGGF) and amending and repealing certain Regulations).
118 The Court referred to the Charter in order to stress its inapplicability in answering the first
question and not used it at all in answering the second one, where this could have been the most
useful. Kaltoft, EU:C:2014:2463, ¶ 39.
119 All EU Member States have ratified the UN CRPD except Ireland, the Netherlands, and
Finland. See Status, UN CRPD,
https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-15&chapter=4&lang=en
(last accessed Mar. 14, 2016).
120 See Decision 2010/48/EC, Concerning the Conclusion, by the European Community, of the
United Nations Convention on the Rights of Persons with Disabilities, 2010 O.J. (L23) 35.
121 Id. annex II.
122 See UN CRPD, supra note 14, at art. 44(1) (“[regional integration] organizations shall
declare, in their instruments of formal confirmation or accession, the extent of their competence with
respect to matters governed by this Convention.”).
123 Wad di ngt on , supra note 37, at 19798.
124 When the European Commission proposed the new Equal Treatment Directive, the
European Parliament suggested using the characterization of disability by the UN CRPD.
Wad di ng ton , supra note 103, at 17475. While this was probably a reaction to the CJEU’s definition
2016] IS OBESITY A DISABILITY? 395
preserving the autonomy of EU law.125 It had also stressed the importance of this
autonomy in the Chacón Navas case, where it held that the concept of disability
had to be interpreted autonomously,126 and so it did recently in its opinion on the
draft accession instrument for the EUs accession to the ECHR. Also, the
Court's use of the concept of disability as characterized by the UN CRPD to
provide a definition of disability under EU anti-discrimination law is at odds
with its position during the negotiations, in which it stated that it would be better
to have no such definition as is the case with Directive 2000/78/EC.127
The CJEU’s application of EU law has a strong impact on the national
legislation of EU Member States, due to domestic courts having to follow its
interpretations. These courts must define disability according to EU anti-
discrimination law in light of the CJEU’s case law, as the District Court of
Kolding must in the case of Kaltoft. The EU’s conclusion of the UN CRPD
therefore makes the CJEU an important actor in the Convention’s
implementation. Since the CJEU has to interpret EU anti-discrimination law in
conformity with the Convention and since the domestic courts must take into
account its case law when applying EU law, the conclusion has a direct impact
on the national legislation of EU Member States. In other words, as far as there
is an overlap between the UN CRPD and EU anti-discrimination law, the
Convention possesses a strong enforcement mechanism in the EU. The CJEU
has, as it were, become the Luxembourg hammer of justiceof the Convention.
The application by the CJEU of the guidance on the meaning of disability in
the UN CRPD, however, leads to a mixture of the different approaches of both
EU anti-discrimination law and European human rights law. As mentioned, they
differ with regards to non-discrimination. Directive 2000/78/EC provides for the
prohibition of discrimination on the basis of disability in the areas of
employment and occupation with a closed justification system, whereas Article
14 of the ECHR prohibits discrimination in the enjoyment of all rights under the
Convention with an open justification system.128
International human rights law also has an extra dimension that EU anti-
discrimination law does not have. In addition to prohibiting discrimination on
the basis of disability, international human rights law proclaims a series of other
rights. The UN CRPD adds a whole range of civil, political, economic, social,
and cultural rights for disabled people. In addition, its purpose is not only to
remove inequalities with other groups but also to include disabled people. In
view of this, both EU anti-discrimination law and international human rights law
differ in their application. EU anti-discrimination law is principally designed to
forbid certain behavior and provide individual remedies, which can best be
achieved through litigation (or, preferably, mediation), although it also entails
positive action. The latter includes quotasand preferential treatment,the
purpose of which is to achieve substantial equality and to provide equal access
to social goods for those groups protected by particular discrimination
of disability in the Chacón Navas case, the Court’s application of the guidance to the meaning of
disability in the UN CRPD in the Ring and Skouboe Werge case may be seen as an endorsement of
the suggestion of the European Parliament.
125 Douglas-Scott, supra note 62, at 67576 (2011).
126 Chacón Navas, EU:C:2006:456, ¶ 42.
127 Grainne de Burca, The European Union in the Negotiation of the UN Disability Convention,
35 EUR. L. REV. 174, 190 (2010).
128 See ECHR supra note 77, at art. 14.
396 COLUMBIA JOURNAL OF EUROPEAN LAW [VOL 22.2
grounds.129 Such action, taken to eliminate pre-existing discriminatory practices,
aims at increasing the inclusion of underrepresented groups and prioritizing
them over other people. By contrast, international human rights law goes beyond
compensation for past disadvantage and also aims at addressing differences as
well as promoting diversity. Th e UN CR PD spells out the measures to be taken
to facilitate the full participation of disabled people in society and to ensure
respect for their human dignity. With regard to employment, not only does the
Convention include a duty to provide reasonable accommodation but it also
mandates open access the workplace and recruitment procedures and training to
disabled people in a way tailored to their individual needs.130 States Parties must
also create incentives to improve the inclusion of disabled people in professional
life through, for instance, wage and cost subventions.131 Furthermore, the UN
CRPD requires that a positive image of disabled people be promoted and that
support be given to assist them in finding and keeping employment. The
Convention shows that its proactive models to advance social inclusion are
broader and more dynamic than anti-discrimination legislation.132 International
human rights law purports to produce social changes that empower disabled
people to participate in society. It is therefore very probable that the UN CRPD
will have no direct effect in EU law.133
The consequence of mixing both approaches is as follows. The purpose of
the UN CRPD is to promote, protect and ensure the full and equal enjoyment of
all human rights and fundamental freedoms by all persons with disabilities.”134
Its general principles include not only non-discrimination but also full
participation in society, individual autonomy and respect for difference. 135
Regarding the right to work, the aim is that States Parties ensure that their labor
markets are open, inclusive and accessibleto disabled people, as provided for
in Article 27 of the UN CRPD.136 The Convention therefore requires that States
Parties have a national strategy to ensure that disabled people can work in the
open labor market and endeavor to foster their acceptance by both employers
and employees. The obligation to include these people in professional life
observes the social model of disability discussed in Part I.
129 Olivier De Schutter, Positive Action, in CASES, MATERIALS AND TEXT ON NATIONAL,
SUPRANATIONAL AND INTERNATIONAL NON-DISCRIMINATION LAW: IUS COMMUNE CASEBOOKS FOR
THE COMMON LAW OF EUROPE 75761 (Dagmar Schiek, et al., eds., 2007).
130 Office of the UN High Commissioner for Human Rights, Thematic Study on the Work and
Employment of Persons with Disabilities, A/HRC/22/25, 6, 89 (2013), available at
http://www.ohchr.org/Documents/Issues/Disability/A-HRC-22-25_en.pdf.
131 Maria Ventegodt Liisberg, Flexicurity and Employment of Persons with Disability in Europe
in a Contemporary Disability Human Rights Perspectives, in EUROPEAN YEARBOOK OF DISABILITY
LAW 18485 (Lisa Waddington, et. al., eds, 2013).
132 SANDRA FREDMAN, HUMAN RIGHTS TRANSFORMED: POSITIVE RIGHTS AND POSITIVE
DUTIES 19091 (2008).
133 According to the CJEU, “the provisions of that Convention are not, as regards their content,
provisions that are unconditional and sufficiently precise . . . and that they therefore do not have
direct effect in [EU] law. It follows from this that the validity of Directive 2000/78 cannot be
assessed in the light of the UN [CRPD].” Z v. A Government Department & Ors, Case C-363/12,
EU:C:2014:159, ¶ 90. This stance was not formulated in the best way given that the Court had
distinguished direct effect and validity analysis in some of its earlier case law. Geert De Baere, Shall
I Be Mother? The Prohibition on Sex Discrimination, The UN Disability Convention, and the Right
to Surrogacy Leave under EU Law, 74 CAM. L. J. 4448 (2015).
134 See UN CRPD, supra note 14, at art. 1.
135 Id. art. 3.
136 Id. art. 27(1).
2016] IS OBESITY A DISABILITY? 397
Mr. Kaltoft, however, was fired not because there were obstacles in his
working environment but allegedly for the mere fact that he was obese.
Apparently, nothing related to this obesity prevented him from carrying out his
job, as he argued himself. So according to the case law of the CJEU, he might
not have a disability. Mr. Kaltoft would not be disabled, since there was no
limitation which results in particular from physical, mental or psychosocial
impairments that in interaction with various barriers may hinder [his] full and
effective participation . . . in professional life.137 He was well able to work in
the Municipality’s day nursery, and there was no argument about this. Had Mr.
Kaltoft faced obstacles in his working environment, he might have claimed
reasonable accommodation, but that was not so in the present case.
The CJEU's definition of disability is both too broad and too narrow. By
encapsulating the UN CRPD’s approach to the concept of disability, the Court
acknowledges the fact that a disabled person’s environment may prevent him or
her from participating in professional life. This approach is indeed helpful in
putting an end to disabled people’s marginalization. However, it provides a very
loose definition of disability, which may be problematic when establishing
whether an individual was discriminated on the basis of disability, as must be
done in the context of litigation. The role of judicial mechanisms as a rule is to
sanction breaches after the breaches have occurred. They do not operate
systematically but on an individual basis. It is therefore difficult to focus on the
environment when ruling that discrimination on the basis of disability has
occurred. Even in terms of policy-making, it is impossible to adopt positive
measures without deciding precisely who belongs to the group that has to be
covered by such measures. In view of this tension, it has been argued that
impairment should be the focus for defining disability in anti-discrimination
policies.138 While this is true in general for anti-discrimination legislation, it is
especially the case in situations where the impairment does not create any
obstacles in the working environment. This may be the reason why the Advocate
General argued that only severe obesitycorresponding to Class III Obesity
(people with a body mass index equal to or greater than 40.0)could be
recognized as a disability.139 Not only was this reasoning arbitrary but such a
high threshold would again be based on the medical model of disability. In
addition, these barriers may present as clearly to those with milder obesity
corresponding to Class I Obesity (body mass index between 30.00 and 34.99)
and, even more so, to Class II Obesity (body mass index between 35.00 and
39.99). Regarding Mr. Kaltoft, who had a BMI of fifty-four (high Class III
Obesity),140 there was no overt hindrance to his participation in professional life,
which counters the Advocate General’s argument that Class III Obesity would
by definition entail such a hindrance. On the other hand, the CJEU's definition
of disability continues to embrace the medical model of disability, as it did in the
Chacón Navas case. The Court maintains its emphasis on the limitation of
disabled people, although it acknowledges in the Kaltoft case that this limitation
results in particular from long-term physical, mental or psychological
impairments which in interaction with various barriers may hinder the full and
137 Kaltoft, EU:C:2014:2463, ¶ 53.
138 Jonathan Wolff, Disability Among Equals, in DISABILITY AND DISADVANTAGE 12627, 135
(Kimberley Brownlee & Adam Cureton eds, 2009).
139 Op. AG Jääskinen, Kaltoft, EU:C:2014:2463, ¶ 56.
140 Id. 51. He had this BMI during his entire employment at the Municipality, while the
medical interventions to reduce his weights had failed.
398 COLUMBIA JOURNAL OF EUROPEAN LAW [VOL 22.2
effective participation of [them] in professional life.141 While the limitation
must no longer result from such an impairment and hinder participation,142 still
there must be something inherent in the individual that creates disability. The
trouble is not only that there must be an impairment that could hinder
participation, resulting in a limitation, but also that the potential hindrance must
be due to interaction with various barriers. Thus, the CJEU created a double
condition to qualify as disabled. While it was argued that the focus on the
environment can render a definition of disability according to EU anti-
discrimination law difficult, in this case it only serves to narrow down the scope
of the limitation in question. Although this approach to the concept of disability
might be adequate for furthering the inclusion of disabled people, it limits the
number of situations in which discrimination on the basis of disability can be
established. In addition, it is unclear whether this limitationonly refers to one
job performance or to attitudinal barriers also. The question is important with
regards to obesity, since discrimination against obese people is often due to such
barriers. Referring to the UN CRPD,143 the Advocate General made the point by
referring to attitudinal and environmental barriers to the participation of
disabled people in professional life.144 It is nonetheless hard to demonstrate that
dismissal is due to negative social attitudes towards disabled people, since this
requires showing that an individual has been stereotyped and since it can raise
difficulties in interpreting the evidence. The CJEU did not adjudicate the issue,
however, and just stated that there is disability if the obesity of the worker
hindered his full and effective participation in professional life . . . 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.145 In other words, obesity has to affect his or her ability to
perform his or her job.
Mr. Kaltoft was however allegedly treated differently for reasons other than
his job performance. He was essentially subject to stigma. He would therefore
not be able to demonstrate that his working environment created barriers to his
participation in professional life, as required by the CJEUs judgment in the
Kaltoft case. In order to claim protection against discrimination, it should be
better if he had only to show that he was dismissed for a motive that is illegal
under EU anti-discrimination law. The condition to establish discrimination on
the ground of disability should therefore simply be whether one belongs to the
targeted group, and the answer can only be given by referring to impairment,
which seems not too difficult to do regarding Mr. Kaltoft. Since discrimination
can take place regardless of the impairment’s actual existence, it is important
however that the definition of disability makes room for cases in which unequal
treatment is unrelated to the impairment in question. In this regard, the ADA
Amendments Act as well as the Irish Employment Act of 1998 146 and the
Human rights Act of New Zealand of 1993147 refer to previous, actual, future,
141 Kaltoft, EU:C:2014:2463, ¶ 53.
142 Chacón Navas, EU:C:2006:456, ¶ 43.
143 In Preamble (e), State Parties recognise that “disability is an evolving concept and that
disability results from the interaction between persons with impairments and attitudinal and
environmental barriers that hinders their full and effective participation in society on an equal basis
with others” (emphasis added). UN CRPD, supra note 14, at preamble (e).
144 Op. AG Jääskinen, Kaltoft, EU:C:2014:2463, ¶ 33.
145 Kaltoft, EU:C:2014:2463, ¶ 60.
146 See generally Employment Act, supra note 31.
147 See generally Human Rights Act, supra note 32.
2016] IS OBESITY A DISABILITY? 399
and presumed impairment to define disability, thereby acknowledging that
discrimination on the basis of disability may be generated only by negative
social attitudes. Under the ADA Amendments Act,148 for instance, obese people
hold more chances to win their cases if they allege that they were presumed to
have a disability, because they do not need to show that they were considered
unable to perform their job by their employer.149 Similarly and in light of the
Kaltoft case, the CJEU would be able to protect obese people against
discrimination were it to rule that disability likewise included presumed
impairment.150 Thus, were the Court to shift its approach by focusing on
impairment in the broadest sensewhich may not in fact existclaimants
would have an easier task demonstrating that they have been discriminated
against due their disability according to EU anti-discrimination law.
As a final issue, the CJEU has restricted its application of the guidance on
the meaning of disability in the UN CRPD to the areas of employment and
occupation. It substituted the words hindrance of full and effective participation
in societyfor hindrance of full and effective participation . . . in professional
life.151 While at first sight this seems quite logical, since the prohibition of
discrimination on the basis of disability only applies to the areas of employment
and occupation, the result is that obstacles other than those in the working
environment are not considered when determining whether an individual falls
under the definition of disability. An individual who is facing obstacles in
society in general but not in his or her professional life,as may be the case
with Mr. Kaltoft, would therefore not be regarded as disabled according to EU
anti-discrimination law. Still, the CJEU did not specify that such obstacles had
to occur in the working environment in which the plaintiff has allegedly been
discriminated, thereby leaving the door open for a broader approach to the
concept of disability. It therefore followed the opinion of the Advocate General,
who was of the opinion that disability should not be related to the working
environment, agreeing that there was indeed no limitationin this regard in the
Kaltoft case.152 In other words, professional lifeshould be interpreted as the
plaintiff’s entire labor market. This being said, giving the working profile of Mr.
Kaltoft, who had been working for fifteen years as a childminder, it is doubtful
whether there would be barriers in other day nurseries that did not exist in the
one in which he was employed by the Municipality. The same may be said about
many employees, who generally join more or less similar organizations that will
hire them for their particular skills. The issue at any rate was not whether there
was any hindrance to full and effective participation . . . in professional life,
and it is quite likely that this would not have been the case were Mr. Kaltoft to
work as a childminder elsewhere.153
148 ADA Amendments Act, supra note 28, at P.L. 110325.
149 Joel Rudin & Kathleen Pereles, Notes on the ADA: Overweight and Overdue: Weight-Based
Discrimination and the ADA Amendments Act, 36 LAB. L. J. 137, 139 (2012).
150 Solanke, supra note 91, at 21718.
151 Kaltoft, EU:C:2014:2463, ¶ 53.
152 Opinion of Advocate General Jääskinen, Kaltoft, EU:C:2014:2463, ¶ 43.
153 A simi lar prob lem occu rred in th e cas e of Z, where two surrogate mothers were claiming
maternity leave under EU law. The CJEU held that, since “it [was] not apparent … that Ms Z.’s
condition by itself made it impossible for her to carry out her work or constituted a hindrance to the
exercise of her professional activity”, she had no disability under EU Anti-Discrimination Law. Z v.
A Gove rnme nt Dep artm ent & Ors, C-363/12, EU:C:2014:169, ¶ 81.
400 COLUMBIA JOURNAL OF EUROPEAN LAW [VOL 22.2
CONCLUSION
It will be up to the District Court of Kolding to decide whether Mr. Kaltoft
has a disability according to EU anti-discrimination law. The court will therefore
have to determine where there is a long-term limitation which results in
particular from physical, mental or psychological impairments that in interaction
with various barriers may hinder [his] full and effective participation . . . in
professional life on an equal basis with other workers.154 The task will not be
easy, since Mr. Kaltoft has apparently been dismissed purely because of his
physical characteristics or appearance.
By applying the guidance on the meaning of disability in the UN CRPD, the
CJEU has aligned its case law with international human rights law, as it had
already done in the Ring and Skouboe Werge case. There are strong arguments in
favor of this. The EU has concluded the UN CRPD and aims to accede to the
ECHR, while European policies are choosing the social model of disability.
However, the present case shows that the approach of international human rights
law is not necessarily the most adequate for defining disability according EU
anti-discrimination law. Without any obstacles in his working environment, Mr.
Kaltoft would have suffered only stigma. Unless the District Court of Kolding
follows the opinion of the Advocate General for whom only severe obesity or
Class III Obesity would amount to disability, it is difficult to predict what it will
do. It is unclear in the present circumstances whether he indeed faced barriers to
his participation in his professional life, except if he can demonstrate that such
barriers resulted from his employer’sor rather employers’ overallnegative
social attitudes towards his obesity. The Kaltoft case therefore creates legal
uncertainly for domestic courts.
While the CJEU had good intentions when applying the guidance on the
meaning of disability in the UN CRPD, it fell short of reflecting more deeply
about the legal and practical consequences of doing so when applying EU anti-
discrimination law. It might have been useful in the Ring and Skouboe Werge
case, in which reasonable accommodation was refused by the employer, but it
raises problems when the only purpose is to determine whether an individual
falls under the definition of disability. The CJEU has not only made disability
some kind of a catch-all discrimination ground on which it is very difficult to
adjudicate but has also taken the risk of eroding EU Member Statessovereignty
by interpreting the concept of disability too broadly.155
In view of this, international human rights law and EU anti-discrimination
law should develop their own approaches to the concept of disability in light of
their respective objectives. This is not to argue against the characterization of
disability by the UN CRPD. The Convention has brought the world's attention to
the fact that disability is not merely a physical or psychological question but also
a question of how society is organized. It is therefore a powerful tool for
addressing the marginalization of disabled people. As far as EU anti-
discrimination law is concerned, a different definition of disability may be
necessary. This definition should concentrate on impairment, as this would allow
to determine whether or not an individual was being discriminated against on the
basis of disability. It should not, however, be so restrictive as to capture
attitudinal and environmental barriersto the participation of disabled people in
154 Kaltoft, EU:C:2014:2463, ¶ 59.
155 Op. AG Geelhoed, Chacón Navas, EU:C:2006:456, ¶ 54.
2016] IS OBESITY A DISABILITY? 401
professional life, by including presumed impairment in particular. If the
environment has to be taken into account, this should be in order to evaluate the
obligation to provide reasonable accommodation. As with the ADA, this would
of course only come into play if the individual is actually impaired. The
judgment in the Kaltoft case will therefore offer no solution for the District
Court of Kolding, but may be used by obese people (and indeed other people
whose physical characteristics could constitute an impairment) to request such
accommodation in future cases. Meanwhile, barriers should be further alleviated
in order to include these people in the labor market, the UN CRPD being a
strong international legal instrument to this end. The approaches of both EU
anti-discrimination law and international human rights law are useful and,
moreover, complementary.
Article
Efforts to promote positive body image and body acceptance confront considerable challenges in the face of pervasive societal stigma against people who have a high body weight or large body size. Despite decades of evidence documenting the prevalence and harmful consequences of weight stigma and discrimination, policies to address this social injustice are lacking and primarily absent. This article summarizes the current status of policies to address societal weight-based mistreatment and highlights evidence documenting public support for different types of policies and laws that could be implemented to reduce weight-based bullying and discrimination. While considerable public policy support is present, efforts to scale up activism are needed to help curtail societal weight stigma. Social media has been an underutilized approach that could provide a powerful platform to elevate public awareness and promote policy change to help eliminate weight stigma.
Article
Objective: Across the world, it remains legal to discriminate against people because of their weight. Although US studies demonstrate public support for laws to prohibit weight discrimination, multinational research is scarce. The present study conducted a multinational comparison of support for legislative measures to address weight discrimination and bullying across six countries. Methods: Participants were adults (n = 13,996) enrolled in an international weight-management program and residing in Australia, Canada, France, Germany, the UK, and the US. Participants completed identical online surveys that assessed support for antidiscrimination laws and policies to address weight bullying, demographic characteristics, and personal experiences of weight stigma. Results: Across countries, support was high for laws (90%) and policies (92%) to address weight-based bullying, whereas greater between-country variation emerged in support for legislation to address weight-based discrimination in employment (61%, 79%), as a human rights issue (57%), and through existing disability protections (47%). Findings highlight few and inconsistent links between policy support and sociodemographic correlates or experienced or internalized weight stigma. Conclusions: Support for policies to address weight stigma is present among people engaged in weight management across Westernized countries; findings offer an informative comparison point for future cross-country research and can inform policy discourse to address weight discrimination and bullying.
Article
Court of Justice – Discrimination on the basis of disability – Article 21 and 26 of the Charter of Fundamental Rights – UN Convention on the Rights of Persons with Disabilities – Employment Equality Directive – Relationship between different sources of law protecting the right of persons with disabilities – Charter as interpretative aid – Charter as a parameter of validity – Scope of application of the Charter – Constitutionalisation of the UN Convention
Article
The Equality Act 2010 provides that someone with a severe disfigurement may fall within the protected characteristic of disability. However, the parameters of the severe disfigurement provision remain uncertain. These parameters are under particular tension from the related concepts of appearance and disability, which partially overlap with disfigurement. This article argues that ‘disfigurement’ should be read as encompassing a broader range of appearance-altering conditions than has yet been recognised. Legal protection should extend beyond conditions such as scarring to include other visible differences. The personal, relative nature of disfigurement should also be recognised; disfigurement should not be viewed as a universal standard irrespective of context, but as a measure of the extent to which a particular person’s appearance is affected by an impairment. Resolving the underlying tension between the concepts of disability and appearance is key not just to addressing disfigurement but also other visible, stigmatised conditions, including obesity.
  • Chacón Navas V
Chacón Navas v. Eurest Colectividades SA, Case 13/05, EU:C:2006:456, ¶ 43.
Equal to the Task? Re-examining EU Equality Law in Light of the United Nation Convention on the Rights of Persons with Disabilities, 4 EUR
  • Lisa Waddington
Lisa Waddington, Equal to the Task? Re-examining EU Equality Law in Light of the United Nation Convention on the Rights of Persons with Disabilities, 4 EUR. YEARBOOK DISABILITY L. 169, 185-86 (2013).
Disability and Employment in the European Union: Collective Strategies and Tool
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Anna Lawson, Disability and Employment in the European Union: Collective Strategies and Tool, in DISABILITY AND EQUITY AT WORK 391, 401 (Jody Heymann et. al. eds., 2014).
Communication from the Commission to the Council, the European Parliament, The European Economic and Social Committee and the Committee of the Regions Equal Opportunities for People with Disabilities: A European Action Plan
The European Disability Action Plan 2004-2010 provided that "[t]he EU also sees disability as a social construct. The EU social model of disability stresses the environmental barriers in society which prevent the full participation of people with disabilities in society." Communication from the Commission to the Council, the European Parliament, The European Economic and Social Committee and the Committee of the Regions Equal Opportunities for People with Disabilities: A European Action Plan, at 4, COM (2003) 650 final (October 30, 2003).
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Council Directive 2004/113/EC, Implementing the Principle of Equal Treatment Between Men and Women in the Access to and Supply of Goods and Services, art. 2(a) and (b), 2004 O.J. (L373) 37; Directive 2006/54/EC, on the Implementation of the Principle of Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation, art. 2(1)(a) and (b), 2006 O.J. (L180) 22.
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Samantha Besson, Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?, 8 HUM. RTS. L. REV. 647, 677-79 (2008).
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  • Schutter
Olivier De Schutter, Positive Action, in CASES, MATERIALS AND TEXT ON NATIONAL, SUPRANATIONAL AND INTERNATIONAL NON-DISCRIMINATION LAW: IUS COMMUNE CASEBOOKS FOR THE COMMON LAW OF EUROPE 757-61 (Dagmar Schiek, et al., eds., 2007).
Flexicurity and Employment of Persons with Disability in Europe in a Contemporary Disability Human Rights Perspectives
  • Maria Ventegodt
Maria Ventegodt Liisberg, Flexicurity and Employment of Persons with Disability in Europe in a Contemporary Disability Human Rights Perspectives, in EUROPEAN YEARBOOK OF DISABILITY LAW 184-85 (Lisa Waddington, et. al., eds, 2013).