Weight Discrimination at Work: Pondering the Obesity-as-Disability Paradigm • Law and the Senses

Simcha Walfish 2^nd year, McGill University, Faculty of Law

15 October 2018

Study after study confirm that weight discrimination in recruitment is widespread. From assumptions about abilities to outright hatred, “obese candidates are assessed having less leadership potential, are less likely to be employed, and are expected to be less successful.”
As public health scholar Zoe Meleo-Erwin writes, in this “era of neoliberalism” in which “medical, public health, and media sectors steadfastly maintain that fatness, or ‘obesity’ in its medicalised term, is an epidemic disease that threatens population health and well-being,” a failure to maintain a ‘healthy’ weight is a failure to meet ones “personal and national responsibility.” In this climate, “anti-fat sentiment has both strong moral undertones and overtones” because “fatness is attributed to a lack of self-control and will power.”

Image: Mark Roehling, Weight‐Based Discrimination in Employment: Psychological And Legal Aspects.

These judgments are not made in isolation from other moralistic valuations of the human body, appearance, and ‘normalcy.’ Research also shows that weight discrimination disproportionately affects women and racialized people. Yet people who face weight discrimination in recruitment have no straightforward recourse under human rights law.

Under Canadian employment law, an employer’s capacity to discriminate in hiring is restricted by human rights statutes, which list prohibited grounds of discrimination. However, neither weight nor appearance is listed in any Canadian human rights statute. This means that weight discrimination cannot be challenged under human rights law without pointing to some other ground as well.

In response to this barrier, some claimants have sought to open an alternate route into the human rights framework through the ground of “disability.” Slowly but steadily, a trend has emerged to reframe obesity as a disability and thus allow claims for weight discrimination in employment. Part I will outline this movement and barriers to it in the text of statutes. Part II will trace how new directions from the Supreme Court open possibilities for moving beyond the text of restrictive human rights statutes. Part III will examine the limitations in the law and argue that treating obesity as a disability is both problematic and insufficient to combat weight discrimination.

Part I: The Text of the Code Matters

In the early 1980s, claimants seeking redress for weight discrimination began to turn to “disability” as an opening in the closed list of prohibited grounds.

The British Columbia case Hamlyn (1989) was the first success. Hamlynalleged that Cominco refused to rehire him because of his weight. Cominco’s general foreman had noted that Hamlyn was “very large in size” and believed that he could not perform the work. Even though Hamlyn could perform the work, the tribunal found that under the Code this perception of disability was sufficient to ground a claim of discrimination.

In other provinces, the logic of “perception of disability” was barred by the text of codes demanding that disabilities have a medical cause. For example, in the Ontario Code, “‘disability’ means, ‘(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness.’” For Ontario tribunals, this was a strict causation requirement. Without medical evidence proving the cause of a claimant’s obesity, no claim of discrimination based on disability could be made.

In Vogue Shoes (1991), the complainant quit her job at a shoe store after being told to lose 35 pounds in six weeks. The Board found that the owners’ concern with her weight was primarily related to her appearance. The owners wanted her to enhance her “presentability” to their customers. Despite accepting social science evidence on the phenomenon of weight discrimination, the Board concluded that “the fact of discrimination is not sufficient.” For the Board, the requirement that a disability be caused by illness was strict. This ruling does not preclude individual claims arguing that a person’s obesity is a disability caused by illness but requires proof of causation in each case.

The law in Saskatchewan reflected a similar preoccupation with causation. In Davison (1991), a Board of Inquiry awarded the complainant $6,000 because the director of a nursing home refused her application out of concern for her “weight problem.” For the Board, since the director perceived that Davison had a disability, Davison was entitled to relief.

The courts disagreed. The Saskatchewan Court of Appeal acknowledged the injustice but found the text of the Code inescapable.

we think it offensive for an employer to treat one person less favourably than another, when considering them for employment, on the ground the one is over-weight or homely or possessed of some such personal attribute having nothing to do with that person’s ability to perform the work. Such treatment strikes at the dignity of the person. It constitutes an insensitive and often cruel blow to one’s sense of self-worth and esteem. But, as counsel for the Commission acknowledged, not all such acts are prohibited by the Code. In other words the expression of the objects of the Code occasionally outrun the effect of its enacting parts.

In 2000, the Saskatchewan Code was amended to remove the causation requirement.

Image: Spring 2015 issue of Conduit, magazine of the Canadian Obesity Network

Part II – Moving Away from the Text: the Social Model of Disability

Following the judgments of the Supreme Court in Boisbriand (2000) and Granovsky (2000), tribunals have felt more open to moving beyond the text of their statutes. While not ruling on the causation requirement in any code, Boisbriand and Granovsky redefined the legal meaning of disability by shifting the analysis away from medical causes to effects on human dignity, respect and the right to equality.

In Boisbriand, the court mentions in passing that obesity may constitute a disability. More importantly, the Court sets out a new approach to interpreting the word ‘disability.’ The appellants had refused to hire three employees because of medical conditions that did not cause functional limitations. The appellants argued that the refusals were not contrary to the Quebec Charter since a ‘handicap’ requires a functional limitation. The Court shifts the analysis from the medical question of what caused the disability to the effects of exclusion:

It is important to note that a ‘handicap’ may exist even without proof of physical limitations or the presence of an ailment. The ‘handicap’ may be actual or perceived and, because the emphasis is on the effects of the distinction, exclusion or preference rather than the precise nature of the handicap, the cause and origin of the handicap are immaterial.

For the Court, the aim of this approach “is not only to eliminate discrimination against persons with handicaps; its goal is also to put an end to the ‘social phenomenon of handicapping.’” Under this paradigm, discrimination is not just about functional limitations but perceptions, myths, and stereotypes. Since functional limitations “often exist only in the mind of other people, in this case, that of the employer,” the analysis needs to move past medical evidence of limitations.

Decided two weeks later, Granovsky further advances the social model of disability in its interpretation of s. 15(1) of the Canadian Charter. The new approach requires “unbundling the impairment from the reaction of society” and recognizing that “much discrimination is socially constructed.” This analysis further de-emphasizes the role of physical causation and looks instead to the economic and social environment of exclusion.

The Court also noted that a disability need not be immutable or unchanging. For obesity-as-disability claims, this means that the fact that weight is not a static factor is not determinative.

In an inconsistent line of cases in the years following Boisbriand and Granovsky, tribunals have been more open to claims that disabilities can exist without medical causation.

In Lombardi (2012), the complainant alleged that workplace harassment on various grounds, including obesity as a disability, caused the fist fight for which he was terminated. The Tribunal considered the approach in Vogue Shoes, writing that the law has since evolved:

However, more recently, the Tribunal has accepted that obesity is included under the definition of “disability” (see for example Ball v. Ontario (Community and Social Services), 2010 HRTO 360 (CanLII), Ketola v. Value Propane Inc. (No. 1), 2002 CanLII 46510 (ON HRT), 2002 CanLII 46510. This development mirrors the Supreme Court of Canada’s acceptance of a social model that conceptualizes “disability” as the outcome of socially constructed barriers and discriminatory customs and norms and seeks to eliminate those barriers and prejudicial attitudes; see discussion of Montréal (City) and Boisbriand (City) in Hinze v. Great Blue Heron Casino, 2011 HRTO 93 (CanLII).

On judicial review, the Ontario Superior Court of Justice (Divisional Court) held that the decision was unreasonable but did not comment on the finding that obesity is a disability.

Part III – Weight Discrimination in Recruitment – Limitations of the Current State of the Law

Despite this new openness to claims, the human rights framework has failed to openly confront weight discrimination at the stage of employment where appearances play the biggest role. One reason is the inherent difficulty in substantiating a claim of discrimination in recruitment. Cases like Davison (discussed above), where the director circled the complainant’s weight on her application and asked her about her “weight problem,” are the exception.

Under this inconsistent state of the law, claimants find it difficult to demonstrate that their protected human rights have been violated and therefore are unsure as to whether they can be successful in making a claim.

The Supreme Court, in adopting a social model of disability, invited a logic that looked past the distinction between real and perceived disabilities. If the impairment is to be “unbundled” from the reaction of society, the prejudice and stereotyping based on perception is discrimination based on disability as such. Having done away with a need for functional impairment and medical causation, there is no need to hierarchize real and perceived disabilities. Yet human rights tribunals have only accepted obesity as a perceived disability. While the human rights framework can provide remedies for perceived disabilities, the insistence that obesity can only be a perceived disability indicates that adjudicators do not see obesity as a true disability.

Weight discrimination is also an intersectional problem; it disproportionately affects women and racialized people. Without a legal change to clarify that weight discrimination is prohibited, the law prevents tribunals from properly addressing the singular harms to people who face discrimination on multiple axes. As the Ontario Tribunal recognized in 2003 in Baylis-Flannery, the effects of discrimination on multiple grounds is greater than discrimination based on a single ground and uniquely “pierces” a claimant’s human dignity.

Further, the mere fact that discriminatory bias is often hidden should not be a barrier to using the human rights framework to remedy discrimination in recruitment. Rather, the current framework is inadequate to address weight discrimination in recruitment for at least two other reasons: a) claimants and tribunals lack clear judicial or legislative guidance that obesity is indeed a disability and tribunals in jurisdictions where disability requires causation must work around their statutes; and b) the disability framework is inadequate and often unhelpful.

a) Clarifying that obesity is a disability

Despite the recognition in Boisbriand that we need to move beyond causes and functional limitations, and despite several cases recognizing obesity as a disability, there have been no legislative changes and few high-level court decisions. The decisions of tribunals have also been inconsistent, deciding whether obesity is a disability on a case-by-case basis.

No court has ruled on the constitutionality of the causation requirement, still required by six jurisdictions. This situation requires tribunals to work with a statute that has not been declared invalid, but which, as Nowell-Smith and O’Reilly argue, is contrary to the law.

b) Inappropriate model

The attempt to claim discrimination through disability makes sense as a strategic entry point into a closed system that otherwise denies claimants any remedies. But the disability framework has serious limitations. Claiming obesity is a disability is offensive to many who face weight discrimination. It also fails to recognize the specificity of weight discrimination.

Critiques of the use of ‘disability’ come from at least two opposing directions. On the one hand, law professor W.A. Bogart writes that “many advocating for fat rights do not want to have to invoke such provisions. They object to the notion that fat people are disabled just because they are overweight. The equating of obesity with illness and impairment is something that they oppose in life and law.” That is, disability is an inappropriate model because fatness is ‘normal.’

Others argue that it is the concept of ‘normalcy’ itself that must be displaced. For example, Meleo-Erwin argues that, “Rather than asking ‘does fatness belong under the umbrella of disability’, I propose that a queering of both disability and fatness provides a stronger critique of neoliberal healthism.” While the social model can be a ‘powerful organising principle, a rallying cry, and a practical tool,’” it is also a limited model. Meleo-Erwin notes that its critics argue that the social model “misses the ways in which impairment and disability, like the body and social environment, are dialectically related” and “ignores the experiential aspect of impairment.” That is, the social model posits a category of the “healthy disabled” that “ignores the experiences of those with chronic and progressive diseases.”

Instead, Meleo-Erwin argues that “both fat bodies and disabled bodies are queer modes of embodiment in that they elicit great anxiety through the disruption of norms about how bodies are supposed to look and how they are supposed to function. Ultimately this anxiety can be seen to arise from the fact that these forms of embodiment unsettle the belief in the fixity of the body and point to its fluidity.” For Meleo-Erwin, then, the point is not to recategorize fatness as ‘normal’ but to dismantle “the social, cultural, and political-economic conditions and structures that create inequality and oppression in the first place.”

Another weakness in the approach that defines obesity as a disability solely based on perceptions is that disability could almost stand in for any other ground of discrimination. For example, some instances of racial and gender discrimination could be attributed to perceived disabilities. This collapsing of categories would totally miss the point of the specificity of each ground of discrimination. Weight discrimination cannot be reduced to misperceptions about ability. It is a problem that emerges from what Roxane Gay calls “a world where the open hatred of fat people is vigorously tolerated and encouraged.” The disability analysis may fit in cases like Hamlyn where management believed a potential employee to be incapable but it breaks down with Vogue Shoes, where what is at issue is not ability but a distaste for a person’s appearance.

Conclusion

While weight discrimination claims can succeed, that weight discrimination is not clearly prohibited means that the human rights framework cannot adequately confront the problem. As Luther argues, the simplest solution is to include weight as a prohibited ground. This would “hold the possibility of addressing all kinds of weight discrimination, not just the kind motivated by real or perceived disability, and not just the kind directed at the medically obese.” Without clearly prohibiting weight discrimination, the human rights framework cannot fulfill its goal to “recognize the dignity and worth of every person,” no matter their appearance.

All sources accessed May 15, 2018