Labor-law experts are awaiting a verdict from the European Court of Justice (ECJ) in Luxembourg on the test case of a Danish man who weighs 160 kilos, or 352 pounds. He claims he was fired for being overweight. The case, initially tried in a Danish court, was passed on to the ECJ to decide if obesity should be legally considered a disability under European employment law.
The advocate general concluded in his argument that very severe obesity should be considered a disability. While the advocate general’s role is advisory, it impacts the court’s decision, which is binding across E.U. member countries. The case is attracting a lot of attention in Germany.
“Should the court go along with this, it will have consequences here too,” said Cornelia Marquardt, manager of the labor-law practice Norton Rose Fulbright in Munich. “Up to now, German courts have only categorized being abnormally overweight as a handicap if it resulted in subsequent illnesses, like diabetes.”
By the advocate general’s reasoning, anyone with a body mass index (BMI) of 40 and over is disabled. Should this be adopted in Germany, then applicants who are refused a job solely because of their BMI could claim damages.
“It is possible that companies will have to offer particularly corpulent employees assistance to lose weight in the future – just like they have to support alcoholics with withdrawal therapy today,” said Ms. Marquardt.
“Of course it’s possible for employers to be influenced by appearances when interviewing people and there is nothing wrong with that.”
A clear answer on what constitutes too fat, or even too short, is difficult to find. “Of course it’s possible for employers to be influenced by appearances when interviewing people and there is nothing wrong with that – but there are limits,” said Gregor Thüsing, director of the Institute for Labor Law at the University of Bonn.
The General Equal Treatment Act (AGG), which came into force in Germany in 2006, contains a clause about discrimination against disabled people. But are obese people considered disabled in Germany?
“No” was the recent verdict of a labor court in Darmstadt in the German state of Hesse. The case concerned a 42-year-old German-language graduate. The woman was 1.7 meters tall, or 5 feet 6 inches, and weighed 83 kilos, or 182 pounds. She had applied for a job at the German tick-borne diseases association. When she was asked after the interview about her weight, she said she didn’t follow the recommendations of the Association of Food and Sports, lost interest in her job application and sued for damages.
She claimed she had been discriminated against and the organization had assumed she was disabled. The court took a different view: Being moderately overweight, as in this case, wasn’t a disability in the sense of the AGG act. The organization would have had to take into account whether the applicant would have been in a position to convincingly recommend health-conscious behavior to others, because of her appearance.
Catrin Gesellensetter is a labor law specialist at Norton Rose Fulbright law firm in Munich. To contact the author: email@example.com