Obesity a disability giving rise to protection? - Qualification as a disability by the European Court of Justice

According to the European Court of Justice obesity can in some cases be considered as a disability, which means that the persons suffering from it are protected against discrimination.

In its judgment of 18 December 2014 the Court of Justice ruled that while obesity cannot be considered as a separate, additional characteristic against which all discrimination is prohibited it can, in certain cases, be considered as a disability, which is a protected criterion which is mentioned in the anti-discrimination Directive. In Belgium this Directive has been transposed into law through the anti-discrimination act.

According to the Court obesity in se is not a disability in the meaning of the anti-discrimination Directive. However, when this obesity implies 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, obesity does fall under the scope of the notion "disability". The Court hereby confirms its broad definition of this notion.

Since the Belgian courts must interpret the notions in the Belgian anti-discrimination act according to the Directive - and hence according to the case law of the European Court of Justice -, they will - from now on - have to test decisions of employers which relate to the obesity of an employee against the provisions of the anti-discrimination act.

Note that the Belgian legislator added "physical or genetic characteristic" to the list of protection grounds, so that obesity could fall under this category as well.

To be complete we remind you that the employees who are the victim of discrimination can claim an indemnity which is fixed at six months' remuneration or, insofar as the employee can prove the real damage, is based on the real damage.

> Action point

If you take measures which can impact obese employees, always take care that such measures cannot be seen as either a direct or indirect discrimination.