How can obesity fit within the legal concept of 'disability'? : a comparative analysis of judicial interpretations under EU and US non-discrimination law after Kaltoft

Abstract

The recent change of the concept of 'disability' by the Court of Justice of the European Union (CJEU) in HK Danmark (Ring and Skouboe Werge) represents a valuable progress in the pursuit of consistency between the social model of disability and the corresponding concept of disability under non-discrimination law. However, even under the new concept, there may be disagreement to qualify certain conditions as a 'disability'. Recent CJEU's case of Kaltoft dealing with obesity reflects this difficulty. The purpose of this paper is to assess the relevance and the impact of including obesity in the scope of 'disability' as a discrimination ground. To that end, a comparative approach will be followed by confronting the Kaltoft ruling with judicial interpretations under the law of the United States of America. It will also be combined with an integrated approach considering the multi-layered nature of disability discrimination law from a European standpoint.