Is Obesity a “Disability” Under the Ontario Human Rights Code?

Is obesity a “disability” under the Ontario Human Rights Code? This question emerged as a result of an e-card image that was posted on Facebook earlier this week. As one can see from the image below, the perception of the woman portrayed is that she cannot become a stripper on account of the fact she perceives herself to be fat and unable to dance.

I will omit, for the moment, any analysis on the issue of the ability to dance. Whether an inability to dance would be covered by the applicable human rights legislation requires too much speculation for this post. The issue of one’s perception of being fat, on the other hand, can be examined.

As one can see from the comic above, our heroine is of the opinion that because she is fat she cannot be a stripper. The legal question that needs to be answered is whether an employee’s weight, or the perception of an employee’s weight, is a disability that must be accommodated in accordance with Ontario’s human rights laws. While some may think analyzing the comic above a little silly, the question begged by it is serious.

Protection under Human Rights Legislation

Most employers in Ontario are subject to the requirements of the Ontario Human Rights Code.. Of relevance to this question at issue are sections 5, 10, and 17.

Section 5 of the Ontario Human Rights Code provides that:

Every person has a right to equal treatment with respect to employment without discrimination because of… disability

Section 10 of the Code defines “disability” to include, 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 threshold question for this case is whether the person is being discriminated against on the basis of a disability. Put in context of the question, is obesity a “disability” under Ontario human rights legislation?

The answer, according to the Human Rights Tribunal of Ontario, is yes. In a 2012 decision of that tribunal, Lombardi v. Walton Enterprises, 2012 HRTO 1675 (CanLII), Adjudicator Judith Keene held that obesity was included in the Code's definition of “disability.”

In reaching her decision Adjudicator Keene cited two earlier decisions of the Tribunal, Ball v. Ontario (Community and Social Services), 2010 HRTO 360 and Ketola v. Value Propane Inc. (No. 1), 2002 CanLII 46510 (ON HRT), and further added,

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. (Para 129.)

The second question is whether the person must actually be "obese," or whether the perception that the worker is obese is sufficient to trigger human rights protection.

According to a 2000 decision from the Supreme Court of Canada, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City) 2000 SCC 27; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) 2000 SCC 27, the answer is yes: an adverse action or omission based on an incorrect perception that a person has a disability engages the protection of human rights legislation.

Therefore, in my opinion, the threshold question of whether this person would be covered by Ontario’s human rights legislation is answered in the affirmative.

The final question is whether the employer must endure the worker’s disability. Section 17(1) of the Human Rights Code provides that:

A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability

However, subsection 17(2) puts a restriction on section 17(1) by adding:

No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

The extent of the duty to accommodate has been considered by this blog in a number of other posts. Readers interested in reading more about the duty to accommodate can find this posts by clicking on this link: Duty to Accommodate.

I will be honest, I do not know what the essential duties or requirements of the position of “stripper” are. In fact, it is that ignorance that precludes me from considering the topic of whether an inability to dance would trigger the duty to accommodate.

Commentary

My sense is that “not being obese” would not be an essential duty or requirement of the position. The free market may determine the employee’s success, but in my opinion it would be wrongful at law for an employer to refuse to employ an individual as a stripper on account of the perception that she is too fat.

As mentioned, this post started as a discussion on Facebook. The comic was intended to be humorous, but once one really considers what is being said one discovers that the issue is, in fact, quite serious.

I personally know nothing about the prevalence of obesity in Ontario or in Canada. The same is an issue for public health officials, and I am not in the field. However, I think I am correct to say that there are a certain number of clinically obese people in Ontario. Those people, like all other Ontarians, need work. While I am passing no judgment on whether those people should become strippers, or take up any other form of employment, the point to be made is that should such an individual wish to take up any profession, he or she is entitled to equal treatment without discrimination. If accommodation is required for the individual, then the employer has a positive duty to consider ways by which the person can be accommodated.

Takeaways for Employees

The takeaway for employees is that Ontario employers have a positive duty to accommodate disabilities, including obesity. Perceptions of a disability also trigger human rights protections. Therefore, if you believe that you have been discriminated against by your employer, whether on account of a disability or for any other reason, it may be prudent to seek professional legal advice; the experienced employment lawyers at Ottawa’s Kelly Santini LLP would be happy to be of service to you.

Takeaways for Employers

The takeaway for employers is that there are several responsibilities an employer has when it comes to accommodating disabilities. Employers not only have a duty to accommodate disabilities to the point of undue hardship, they also have procedural duties to investigate whether discrimination is occurring in the workplace and to address the same if it is.

The duty to accommodate is a vexing issue. If you are an Ontario employer and if you are unsure about the extent of your responsibilities, the experienced employment lawyers at Ottawa’s Kelly Santini LLP would be happy to be of service to you.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden, publisher of the law blog for the suddenly unemployed, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.