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Morbid obesity a disability? 17/07/2014 Morbid obesity may amount to a ‘disability’ for the purposes of the Equal Treatment in Employment Directive, according to Advocate General Jääskinen.

Morbid obesity a disability?

Morbid obesity may amount to a ‘disability’ for the purposes of the Equal Treatment in Employment Directive, according to Advocate General Jääskinen of the Court of Justice of the European Union.

In his Opinion, published this week, whilst there is no general principle of EU law prohibiting discrimination on grounds of obesity in its own right, morbid obesity may come within the meaning of ‘disability’ if it is of such a degree as to hinder full participation in professional life on an equal footing with other employees.

Whilst the concept of disability is not defined in the Directive, the Court has stated that a ‘disability’ in this context refers to limitations which result from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person in professional life on an equal basis with other workers. Although not every illness would therefore fall within the scope of this concept of disability, certain illnesses, if medically diagnosed and resulting in long-term limitations, could be classified as a disability for the purposes of the Directive.

Advocate General Jääskinen highlights that disability results from interaction between persons with impairments and the attitudinal and environmental barriers that hinder their full and effective participation in the workplace. As the Directive’s purpose is to combat all forms of discrimination on the grounds of disability, no link has to be made between the work concerned and the disability at issue.

Even if a condition does not affect the capacity of that person to carry out the specific work in question, it can still be a hindrance to full and effective participation on equal terms with others. There can be long-term physical, mental, or psychological impairments that do not make impossible certain work, but which render the carrying out of that job or participation in professional life objectively more difficult and demanding. Typical examples of this are handicaps severely affecting mobility or significantly impairing the senses such as eye-sight or hearing.

The Advocate General explains that, although there is no obligation to maintain an individual in employment who is not competent to perform the essential functions of the post, reasonable measures should be taken to accommodate the disabled individual unless the burden on the employer would be disproportionate.

Therefore, Mr Jääskinen considers that if obesity has reached such a degree that it plainly hinders participation in professional life, then this can be a disability. In his opinion, only extreme, severe or morbid obesity, that is to say a BMI of over 40, could suffice to create limitations, such as problems of mobility, endurance and mood, which amount to a ‘disability’ for the purposes of the Directive.

It would be for the national court to determine whether the obesity in question falls within this definition.

Finally, the Advocate General adds that the origin of the disability is irrelevant. The notion of disability is objective and does not depend on whether the applicant has contributed causally to the acquisition of his disability through “self-inflicted” excessive energy intake. Otherwise physical disability resulting from reckless risk-taking in traffic or sports would be excluded from the meaning of disability.

See the Opinion and the press summary.

 

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