Weight discrimination goes up for debate in Manitoba legislature

But would new regulation really be necessary?
By Marcel Vander Wier
|Canadian HR Reporter|Last Updated: 01/23/2017
If successful, Bill 200 in the provincial legislature — which aims to ban discrimination based on weight — would make Manitoba the first jurisdiction in Canada to specifically ban this type of prejudicial treatment, according to MLA Jon Gerrard. Mark Blinch/Reuters

A Manitoba politician is aiming to ban discrimination based on weight — but one lawyer is questioning whether such legislation is necessary.

Liberal member Jon Gerrard recently tabled Bill 200 in the provincial legislature aiming to ban discrimination based on weight. If successful, Manitoba would be the first jurisdiction in Canada to specifically ban this type of prejudicial treatment, he said.

While Gerrard is a private member facing a majority Progressive Conservative government, he said he is hopeful that meaningful discussion will occur on his bill during the spring session.

“This would provide, in Manitoba, an avenue for someone who feels they’re being discriminated against to go to the Human Rights Commission and have it looked at, investigated,” he said. “The healthy thing about that is it would bring greater awareness… and a clearer definition of what is and what’s not appropriate, whether it’s in the workplace or elsewhere. I think we can have more positive and productive workplaces.”

“I would hope that we would see other provinces following suit.”

Redundant legislation?

But Manitoba’s human rights code already includes a “catch-all” that doesn’t appear uniformly in other provincial human rights codes, said Winnipeg labour lawyer Ken Dolinsky, a partner at Taylor McCaffrey.

It describes discrimination as “differential treatment of an individual on the basis of the individual’s actual or presumed membership in or association with some class or group of persons, rather than on the basis of personal merit.”

Arguably, with or without specific language surrounding weight, the current provincial code already protects workers and citizens from that form of discrimination, said Dolinsky. Further, Manitoba legislation under the Workplace Safety and Health Act protects workers from harassment surrounding body type.

“It may be illusory to think that there isn’t protection for people based on a weight issue,” he said of Bill 200. “It just shouldn’t be treated as if it’s breaking new ground because people have alleged discrimination successfully based on weight in various jurisdictions for years. I would argue, from an employer’s perspective, it’s not necessary. I think there’s a lot to work with already.”

“Essentially, if you are discriminating against fat people, it’s the same as if you’re discriminating against someone who has darker skin or lighter skin or burns on their skin. You’re treating someone differently based on some characteristic instead of personal merit. If someone just doesn’t get a job — under the current state of the law in Manitoba — and feels like they were treated poorly and got some hint that it related to their weight, then they could file a complaint.”

Classifying discrimination profiles in legislation gives less credence to other classes of individuals who may also suffer harassment, said Dolinsky.

A better avenue may be educating the public that treating people as second-class citizens due to personal characteristics is grounds for discriminatory challenges, he said.

And organizations should still review hiring practices to prevent a possible lawsuit, said Dolinsky.

“That’s preventative medicine, whether the law changes or stays the same.”

Cases of weight discrimination have been tried in a variety of Canadian jurisdictions — typically when extra pounds were perceived to be a disability, said Dolinsky.

“Employers make decisions at their peril if they are based on someone’s appearance,” he said, citing a recent case in British Columbia where an overweight man won $2,000 in court after failing to earn a job as a construction zone flagman due to the perception he was disabled. “Employers should already be aware of behaviour that discriminates on the basis of weight, whether it be based on perceived health issues or something else.”

‘Rampant’ discrimination

But make no mistake, weight discrimination is “rampant” in the workplace, said Toronto activist Jill Andrew, adding fat jokes are still prevalent in the public sphere, viewed as a “rude joke as opposed to a discriminatory action.”

“If you made a fat joke at your office today, maybe you’ll offend a person or two, but nobody’s going to take you to HR for that,” she said. “However, if you vented and ranted about Muslim religion or blacks or gays, I guarantee you that you would have your job taken the following day. That’s why we need to have laws to reflect these things.”

Co-founder of the Body Confidence Canada Awards, Andrew is pushing for an amendment to the human rights code in Ontario. A petition she posted to www.change.org in May 2016 has gathered more than 8,500 signatures of support.

“It can include everything from size to height to facial differences to something as innocuous as early hair loss, which we have started to see cropping up,” she said of discrimination based on appearance. “When we stop appearance-based discrimination, we allow people to really tread forward in the skin they’re in on the basis of their intelligence and skill.”

“I do feel like this is an area where we need to push further.”

Discrimination isn’t always obvious or intentional, said Andrew.

“Fat people, or people who may not have facial features that are seen as a normalized look of beauty, are often not placed in front positions,” she said. “They’re often not the ones travelling to represent the company.”

Additionally, work absenteeism can often result when employees feel judged or ridiculed by colleagues.

“The irony is if we cure the ‘social illness’ of size and physical appearance discrimination, it can be economically beneficial to the workforce,” said Andrew.

Delicate balance

Benefits to this type of legislation could trickle down as far as the provincial economy, said Gerrard, noting the provincial GDP could increase its productivity as a result of a decrease in mental illness.

A doctor by trade, he said it has “been a journey in terms of learning” on this issue, stemming from both medical studies and discussions with affected citizens who have felt discriminated against because of their weight.

“I was stunned to see how big a problem, and how blatant a problem, it is,” he said.

“I was kind of awoken to the severity of it. Discrimination is leading to mental health problems. We have to be very careful about stigmatizing or discriminating against people who are overweight because that is, in my view, not appropriate. There’s much better ways that we can go about approaching this that are healthier for people.”

Society needs to move beyond blaming the victim and recognize that being overweight, for many people, is in their genes, said Gerrard.

“They may be able to go on a diet or a program for a short period of time and lose weight, but very often, after more time passes, they put a lot of that weight right back on. I think it is fundamentally really important that we recognize that this is a condition where we shouldn’t be blaming the person who is overweight.”

People need to be comfortable in their body, he said.

“We need to accept who they are and let them feel comfortable in who they are. It is important in terms of mental health.”

Physical and mental well-being  go hand in hand, said Gerrard.

“If you want people to be productive in the workplace and do well, I think it’s really important that we do what we can to optimize brain health and physical health.”

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