Jan 8

Weight Discrimination

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Obesity an Illness Deserving of Protection Against Discrimination? European court says “Yes”

In the near future, Canadian human rights legislation may see “weight” as a prohibited ground under the Ontario Human Rights Code, R.S.O. 1990, c.19, and its equivalents across the nation.

Recognized as a disease by the American Medical Association in June of 2013, obesity has just been found to be deserving of discrimination protection by the Court of Justice of the European Union. The ruling arose when a childcare worker of fifteen years filed a wrongful dismissal claim, alleging that he was terminated for his weight – he was 352 lbs.

In reaching their decision, the court noted that obesity hindered “full and effective participation of that person in professional life on an equal basis with other workers.” The Plaintiff had been unable to perform his job duties without the aid of another worker, specifically tying the children’s shoes. His employer denied that the decision was made based on his weight.

While the court did not specifically state that obesity would be recognized as a “disability”, it did find that an individual such as the Plaintiff could be deserving of protection.

Applicability to Canadians
Despite this finding having occurred on European soil, obesity is very much a Canadian issue. In fact, according to Statistics Canada, in 2012 18.4% of Canadians aged 18 and older (about 4.7 million adults) reported a height and weight that classified them as obese. (Source: http://www.statcan.gc.ca/pub/82-625-x/2013001/article/11840-eng.htm)

Impact on Canadian Law
Other illnesses officially recognized as disabilities, such as “invisible disabilities” (psychological trauma and other mental afflictions), have eventually received protection under the Code. It’s likely, but not guaranteed, that this ruling will eventually make its way into Canadian human rights legislation.

A question left unanswered, and certainly something which Canadian law makers will have to consider if they do label obesity as a “disability”, is how the disease will be measured. Lawmakers could go for a standard scientific approach, using the individual’s Body Mass Index (“BMI”) as an identifier, use a reasonable person test (i.e. whether a reasonable person could be expected to perform their job duties satisfactorily without unreasonable accommodation), or they could require a professional diagnosis in order for the individual to be considered “disabled” and thus worthy of protection under the Code.

Once you are identified as a disabled worker, the Code mandates that your employer accommodate your disability to the point of undue hardship. At this point, it’s hard to tell what that would entail when dealing with an obese worker, however given the physical limitations of other disabled individuals, such accommodations could include:
• Additional support (i.e. having a co-worker assigned to assist when required);
• Shorter working hours or more frequent breaks; and,
• Limiting the amount of time a worker spends on their feet.

Advice to Employers
While obesity is not yet recognized as a disability in Canada, it is important that you, as an employer, take the required steps to accommodate disabled workers and to ensure that your workplace is discrimination-free. If you are unsure as to whether your workplace policies are up-to date with current human rights legislation, contact Monkhouse Law today for a free consultation.

Advice to Employees
Although obesity is not yet considered a disability under the Code, it may one day be. If you suffer from a recognized disability and have been subjected to poor treatment and/or lack of accommodation, contact Monkhouse Law today for a free consultation. What constitutes a “recognized disability” is changing with the evolution of human rights legislation, and you may have a legal remedy available.