In 2013, 18.8 per cent of Canadians aged 18 and older — roughly 4.9 million adults — reported height and weight that classified them as obese, according to Statistics Canada. Therefore, the issue of whether obesity is a disability is an important one.
Some jurisdictions in Canada have expressly recognized obesity as a disability, whereas others have not. These distinctions are based largely on the applicable human rights legislation in each jurisdiction and, in particular, how “disability” is defined.
An examination of the case law in British Columbia (where human rights legislation does not define disability) in contrast with that of Ontario (which specifically defines disability) highlights the different approaches.
British Columbia’s Human Rights Code protects employees from discrimination on the basis of disability. However, it does not define the term “disability.” As a result, the B.C. Human Rights Tribunal has tended to take a broader approach to protecting obesity as a disability.
In 1989’s Hamlyn v. Cominco Ltd., the complainant was laid off by his employer and was not recalled when the employer needed several employees to work on a shutdown crew. The complainant, who weighed between 325 and 350 pounds, alleged he had been discriminated against on the basis of his weight.
The employer agreed it had not hired the complainant because of his weight, but asserted his obesity was not a disability because it was a correctable condition. The employer also contended the complainant’s weight prevented him from entering parts of the plant and using certain types of equipment that were vital to the performance of his duties.
The British Columbia Council of Human Rights (as it was then known) allowed the complaint. It found that the complainant’s obesity was a disability because the employer perceived it as such. It cited the employer’s evidence as to the complainant’s inability to access certain parts of the plant and equipment.
In Rogal v. Dalgliesh (2000), the complainant was denied employment with a carnival operator. West Coast Amusements told Bert Dalgliesh he was “too big and heavy” for the carnival’s “fast-paced lifestyle” and it did not have a uniform large enough for him. The complainant alleged the decision not to hire him on the basis of his weight constituted discrimination on the basis of a disability. The employer contended obesity was not a disability.
But the B.C. tribunal held that obesity is a disability when it impacts the employer’s decision not to hire a person.
In 2004’s Sheppard v. RFCOP Restaurant Holdings Ltd., the complainant alleged discrimination on the basis of disability due to her weight and health problems. Specifically, she alleged her employer had told her she should lose weight, she would be a drain on the employer’s extended benefits plan, and RFCOP made other comments related to her mental health.
The employer argued the complainant’s condition was not a physical disability and it did not stop her from performing her job in any way. The B.C. tribunal disagreed and confirmed that obesity had been found to be a disability, relying on the Cominco decision.
In the 2010 Johnson v. D & B Traffic Control, Kevin Johnson alleged discrimination on the basis of physical disability when he was not called into work as a flagger due to his weight. He did not present any medical information stating he had a disability or indicating any limitations on his ability to perform his work due to a disability. Nor did he provide any medical reports to support any physical restrictions.
In relation to being overweight as a disability, B.C. tribunal member Enid Marion noted:
“In my view, simply being overweight is not sufficient to constitute a disability for the purposes of the code. There must be some limitation on the ability to perform the activities of daily living or work in order to constitute a disability. While I accept that obesity may, dependent on the circumstances, constitute a disability, based on the evidence presented in this case, I am not persuaded that Mr. Johnson has an actual disability.”
Nonetheless, the B.C. tribunal concluded that since the respondents “perceived” Johnson to have a disability and this perception was a factor in the decision not to offer him work, the complaint was upheld.
The Human Rights Code in Ontario also protects employees who have a disability from discrimination. However, the code contains a very specific definition of disability: “Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device.”
The requirement that the physical disability be caused by a bodily injury, birth defect or illness is what has caused the most controversy with respect to whether obesity is a disability in Ontario. This is particularly so because obesity is not necessarily caused by any of these factors and may be genetic or environmental, as seen in 1991’s Ontario Human Rights Commission v. Vogue Shoes. As a result, the Ontario Human Rights Tribunal has been more reluctant to conclude obesity is a disability.
In the 2011 Hinze v. Great Blue Heron Casino, the applicant alleged he had been terminated in part because of a disability. While the issue in the case was not whether obesity constituted a disability, the tribunal held that “there must be some inability to do something others can normally do and substantial limits on one’s activities” before a disability can be found to exist.
It went on to acknowledge “obesity, unless otherwise caused by bodily injury, birth defect or illness” does not constitute a disability under the code.
In the 2013 Smit v. Diageo Canada Incorporated, the applicant had gained considerable weight and could not fit into the table and chair units at his workplace. He asserted his employer’s duty to accommodate was engaged because his weight gain allegedly resulted from a physical and psychological injury.
The Ontario tribunal noted there was no substantial medical evidence of a psychological injury and no evidence other than the applicant’s belief that his weight gain resulted from his other injuries. Given the lack of evidence, the tribunal was not prepared to find that the applicant’s weight gain was a disability within the meaning of the code. The application was dismissed.
Despite the tribunal’s findings in Hinze and Smit, its comments in a recent decision suggest obesity may constitute a disability in Ontario even if it is not caused by bodily injury, birth defect or illness. In the 2012 Lombardi v. Walton Enterprises, the applicant alleged he was discriminated against on the ground of disability when his supervisor harassed him by making inappropriate comments and sending him text messages.
There was no evidence Paul Lombardi was in fact obese at the time of the alleged harassment; however, he alleged he was harassed because he was perceived to be obese.
The tribunal noted that while adjudicators had formerly found that obesity was a handicap only when the obesity was caused by bodily injury, birth defect or illness, it also considered more recent case law and noted obesity has recently been included under the definition of “disability.”
The Ontario tribunal also found that Lombardi was harassed, in part, because he was incorrectly perceived to be obese and, therefore, incorrectly perceived to be suffering from a disability, and the respondents had violated his right to freedom from harassment in employment on the ground of disability.
Whether obesity will constitute a disability will be fact-specific and may vary from jurisdiction to jurisdiction. If there is evidence the obesity is caused by an injury, illness or birth defect or the obesity is perceived to be a disability, it will likely be deemed as such, regardless of what jurisdiction an employer finds itself in. Therefore, employers are well-advised to carefully examine any obesity-related accommodation requests.
Casey Dockendorff is a partner at Filion Wakely Thorup Angeletti in London, Ont. For more information, visit www.filion.on.ca.
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