Brussels, 22/07/2014 (Agence Europe) - Insofar as someone who is severely obese cannot work effectively or will find it more difficult than his/her colleagues, the person should be considered as suffering from a disability and protected from discrimination, in terms of the principle of equal treatment in employment and work. That is the conclusion of Advocate General Niilo Jääskinen in his opinion on a case before the European Court of Justice on Thursday 17 July (C-354/13).
The first question put to the European Court of Justice was whether Community law, particularly the TFEU and the EU Charter of Fundamental Rights bans discrimination based on obesity. Jääskinen does not believe that this case. Nonetheless, on the basis of the directive and the creation of a general framework on equal treatment in employment and work (2000/78/EC), obesity can be defined as a disability. Although this directive does not provide a precise definition of what a disability is, its general framework has already been clarified previously by the Court: this involves a situation that makes full and effective participation of an individual in the workplace difficult and which stems from the interaction between the person and behavioural and environmental barriers. The difficulties in this context appear due to the long-term limitations resulting from physical, mental and psychological problems in the individual in question.
On this basis, the Advocate General concludes that obesity can constitute a disability if it reaches a degree that clearly makes participation in professional life difficult. How can this degree be defined? Jääskinen believes that only extreme, severe or morbid obesity, that is to say a body mass index (BMI) of over 40, could suffice to create limitations, because normal body mass is located at between 18.5 and 25.
When this body mass goes above 40, problems involving mobility and stamina and even psychological difficulties can appear and affect professional activities, says Jääskinen. He also points out that the source of this disability, as is the case for any other category of disability, is irrelevant. In such a situation, although the employers are not obliged to maintain the employment of a person who cannot exercise their essential working tasks, they are obliged to adopt reasonable measures to adapt to the needs of the disabled person, unless such measures incur disproportionate costs. (JK)