Firing Fat Staff May Be Discrimination, EU Court Aide Says

Jul 17, 2014 9:42 am ET

(Updates with lawyer comment starting in fourth paragraph.)

July 17 (Bloomberg) -- Obese workers may be able to sue for work-place discrimination, a legal adviser to the European Union’s top court said in a case that could pave the way for the extremely fat to be treated as disabled.

Advocate General Niilo Jaaskinen said the EU Court of Justice should rule that if obesity “has reached such a degree that it plainly hinders participation in professional life,” it should be treated as a disability. He said that should only apply to severe cases, such as people with a body mass index of more than 40 that face “problems of mobility, endurance and mood.”

Obesity has reached epidemic proportions globally, according to the World Health Organization, which says at least 2.8 million people die each year as a result of being overweight or obese. People with a BMI of more than 25 are classified as overweight and a BMI of more than 30 is obese. As many as 30 percent of adults in Europe are obese, the WHO says.

“Clinically obese employees in the entire EU now have the prospect of enjoying better and more effective protection in the labor market,” said Jacob Sand, the lawyer for the FOA trade union that took the case on behalf of Karsten Kaltoft, a Danish child minder who claimed he was fired because of his weight.

Kaltoft is suing the town of Billund, Denmark, after he was dismissed from his post in 2010. Kaltoft, whose weight was never less than 160 kilograms at the time, had a high body mass index of 54, which classified him as obese. His public-sector employer denies that this was why he lost his job.

With Impunity

Employers need to be aware that they aren’t able to dismiss obese employees with impunity said Audrey Williams, an employment lawyer at Eversheds LLP in London. Companies may need to check the extent of the effects of obesity and whether it is triggered by prescription drugs used to treat medical conditions, she said.

While the court aide’s opinion isn’t binding, the top EU court follows the recommendation in most cases. Kaltoft first took his case to a Danish court, which asked the EU tribunal to rule on whether obesity could be included as a reason for unlawful discrimination by employers. Final decisions over his firing will be taken by the court in Denmark.

Gay Asylum Seekers

In a separate case, another legal adviser said EU governments should face limits on how they test asylum seekers’ sexual orientation.

Advocate General Eleanor Sharpston said the EU’s top court should rule that governments can’t use “intrusive or humiliating” tests or questioning to check whether asylum seekers are gay.

“Medical examinations should not be used as homosexuality is not a recognized medical condition and pseudo-medical examinations cannot establish sexual orientation,” the court said in a statement.

A Dutch court is asking the EU tribunal whether the Dutch government can demand evidence for whether asylum seekers are homosexual.

The cases are C-354/13 Kaltoft; C-148/13, C-149/13 and C-150/13.