German Employment Update – Obesity May Qualify as Severe Disability

By on March 3, 2015
Posted In Employment

European employers should exercise caution in the event of the dismissal of an obese employee.  The European Court of Justice (ECJ) determined that obesity may qualify as severe disability if it significantly restricts participation in working life (ECJ, judgment of December 18, 2014 in Case C-354/13).  This decision may be relevant not only for dismissals but also in hiring decisions. In order to avoid undue discrimination, an employment rejection letter should in no way whatsoever refer to the applicant’s weight.  The plaintiff in the present case was an obese nursery teacher who filed a suit against his employer, the Danish community Billund, because of his dismissal.  The employer argued that the dismissal was due to declining numbers of children being registered.  The nursery teacher argued that the reason for his dismissal, after 15 years of employment, was his obesity, which constituted undue discrimination due to disability.

The ECJ clarified that European Union law does not contain a general prohibition with respect to obesity discrimination in employment.  Nevertheless, obesity may qualify as severe disability if it significantly interferes with full and equal participation in working life.  This can happen in cases of a particularly serious obesity of long duration, which causes physical, intellectual and mental impairment.  According to this definition, the cause of the obesity is irrelevant.  Now, following the decision of the ECJ, the Danish trial court has to decide if the nursery teacher’s obesity significantly interferes with full and equal participation in working life.

The decision of the ECJ may have significant impact on German employment law.  Up until now, only conditions resulting from obesity (e.g., diabetes or chronic back pain) qualified as a severe disability.  Following the decision of the ECJ, obesity itself may qualify as severe disability.  It remains to be seen whether – and, if so, at which level –the ECJ will establish thresholds under which a dismissal or a rejection of an applicant is considered discriminatory due to obesity.  Until then, the decision of the ECJ gives rise to considerable legal uncertainty.

Bettina Holzberger
  Bettina Holzberger focuses her practice on labor and employment law. Her practice covers cross-border transaction work as well as traditional labor and employment matters. In the area of labor and employment law, she advises clients, inter alia, on the drafting of a broad range of contracts (including traditional employment contracts as well as bonus plans, service agreements for directors and officers, and termination and assignment agreements for employees as well as executives), often in an international context that requires coordinating the advice of foreign counsel.  Read Bettina Holzberger's full bio.

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