By Julia Fioretti
BRUSSELS (Reuters) - A European Union law barring job discrimination against the disabled may apply to extremely obese people, an adviser to Europe's top court said on Thursday.
The non-binding opinion concerns the dismissal of Karsten Kaltoft, a child-minder, by a Danish city council in 2010. Kaltoft argued that his obesity was part of the reason he lost his job and that it amounted to unfair discrimination, an allegation that Billund city council denies.
The Court of Justice of the European Union was asked to rule on whether EU law forbids discrimination on the grounds of obesity and if obesity can be considered a disability.
The advocate general, who advises the European court in Luxembourg, found that EU law does not prohibit discrimination specifically on the grounds of obesity, even if it does offer general protection against bias on the grounds of disability.
But Niilo Jaaskinen, the advocate general, did conclude that extreme obesity, classified as having a body mass index (BMI) of more than 40, could be considered a disability.
"If obesity has reached such a degree that it plainly hinders participation in professional life, then this can be a disability," Jaaskinen said.
BMI is an indicator of obesity which takes into account a person's weight and height. Kaltoft never weighed less than 160 kg (352 lbs) during his employment, meaning he had a BMI of 54, the advocate general said.
Recommendations from advocates general are usually followed by the court, which will consider the Kaltoft case over the next few months.
SPECIAL CAR PARK SPACES
An agreement by the court with the advocate general's opinion would have significant repercussions on employers as they could be required to make special adjustments for morbidly obese employees, lawyers said.
"Employers could find themselves under a legal obligation to make adjustments such as providing car park spaces close to the workplace entrance for obese employees, providing special desks, or providing duties which involve reduced walking or traveling," said Glenn Hayes, an employment law partner at UK firm Irwin Mitchell.
Still, having a BMI over 40 would not automatically mean a person is disabled.
"Obesity will not automatically trigger a duty on the part of employers to have to consider making reasonable adjustment to accommodate obese employees in the workplace," said Richie Alder, an employment lawyer at Trowers & Hamlins.
In his opinion, Jaaskinen said that even where the condition does not affect a person's ability to carry out a specific job, it can still make it harder compared to other people, therefore making it a disability.
Furthermore, Jaaskinen threw out the notion that a "self-inflicted" disability could be any less worthy of protection, saying "the origin of the disability is irrelevant".
"(It) does not depend on whether the applicant has contributed causally to the acquisition of his disability through “self-inflicted” excessive energy intake," he added.
If the EU court upholds Jaaskinen's view, it would be up to a Danish court to decide whether Kaltoft’s obesity met this definition.
(Editing by Mark Heinrich)