On December 18, 2014, the European Court of Justice decided that while obesity, in itself, is not necessarily a disability, where obesity hinders a person’s ability to engage in “full and effective participation” in the workplace, it could warrant the protection of disability legislation. So what is the status of obesity as a disability in Canada?
Statscan reported in 2013 that almost 14 million Canadian adults self-reported as overweight or obese and a 2014 study by Memorial University estimated that by 2019 21% of Canadian adults will be obese. In 2013 the American Medical Association recognized obesity as a disease, although it appears that to date, the Canadian Medical Association has not yet made the same determination.
Being overweight or obese is not necessarily a “disability” which affects a person’s performance or ability to do the job and to assume so would be at least insulting, if not discriminatory. It is possible, however, that obesity, or a medical condition caused or exacerbated by obesity, may indeed affect an employee’s “full and effective participation” in the workplace’ in which case an employer needs to know its legal duties and obligations.
The various provincial human rights codes or commissions define “disability”. Ontario, for example, defines “disability” as “(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness …” (Emphasis added). Despite this definition, the Ontario Human Rights Tribunal has recognized obesity as a disability in Lombardi v. Walton Enterprises (2012). New Brunswick’s definition is similar and has a similar causal factor in its definition, as does Prince Edward Island, however, PEI also includes “previous or existing” to its definition. Alberta’s Human Rights Commission’s definition also includes a causal factor.
Saskatchewan, Manitoba, Nova Scotia and Newfoundland and Labrador’s definitions have no causal requirement. Nova Scotia’s protection also applies to “actual or perceived” disabilities.
The British Columbia Human Rights Act interpretation of the definition of disability overtly includes obesity, as follows:
Physical disability includes conditions that impair a person’s ability to carry out the normal functions of life. It includes addiction, amputation, asthma, acne, diabetes, cancer, epilepsy, high blood pressure, hypertension, obesity and impairments to hearing, speech, vision and mobility. It does not include short-lived conditions such as a cold.”
Quebec defines a “handicapped person” as “a person with a deficiency causing a significant and persistent disability, who is liable to encounter barriers in performing everyday activities.” It is unclear whether obesity would be or should be considered a “deficiency”, however it may be that a medical or physical condition caused by obesity may be.
The Supreme Court of Canada has similarly weighed in on the subject in the Boisbriand case (2000) where the court stated the following with respect to rights legislation:
With respect to employment, its more specific objective is to eliminate exclusion that is arbitrary and based on preconceived ideas concerning personal characteristics which, when the duty to accommodate is taken into account, do not affect a person’s ability to do a job.”
Instead, a multi-dimensional approach that includes a socio-political dimension is particularly appropriate. By placing the emphasis on human dignity, respect, and the right to equality rather than a simple biomedical condition, this approach recognizes that the attitudes of society and its members often contribute to the idea or perception of a “handicap”. In fact, a person may have no limitations in everyday activities other than those created by prejudice and stereotypes.” (Emphasis added)
By all accounts, it appears that rights legislation and jurisprudence is leaning toward protecting against prejudice in whatever form it may take, despite whether such prejudice is caused by actual medical or physical conditions. It also appears that courts and tribunals are not likely to consider any fault of employees or to imply any moral judgment in the assessment of whether an employee is entitled to the protection of the law.
So what is an employer to do in this ever-changing human rights environment? If employers don’t wish to be the next test case, they would be wise to follow the advice of the Supreme Court of Canada and to emphasize human dignity, respect and equality. Employers should be careful to ensure that no employee is treated differently or discriminated against due to a physical characteristic such as size, shape, disfigurement, scarring, acne etc. (even in cases where customers or clients may discriminate), and even though such physical characteristic may not meet the definition of disability under human rights legislation.
And because some employees may have a condition or disability which affects the ability to do the job, employers should ensure all employees are aware of the employer’s duty to accommodate and the process by which an employee would request such accommodation, however, employers should never assume such need or impose such accommodation unilaterally. Of course, employers should seek legal advice if they need direction in dealing with any particular case.
See Human Resources PolicyPro’s chapter 5.04 – Accommodation on the Basis of Disability for more on the topic of discrimination and accommodation on the basis of disability.