Written on behalf of Peter McSherry
Ontario law protects individuals against adverse action due to a medical disability. The first issue with respect to this question of obesity is whether the person has a medical problem which has caused the condition of obesity. Ontario law requires this as a first step to substantiate a claim as the statute requires this. The Human Rights Code defines disability as:
- any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness…
The individual would then need to prove some form of diagnosed medical condition which, in turn, has caused the obesity.
Perception of a Disability
There is, however, another argument. Human rights protections also apply to a “perceived disability”. In this latter context, it does not matter whether there is in fact an underlying disability. It is enough to justify a complaint if the employer believed that the person suffered from a disability.
The 2000 decision of the Supreme Court of Canada made it clear that the definition of a human rights disability was not one which was limited to a condition showing real and actual limitations but rather encompassed the perception of the employer that the applicant was suffering from a disability.
One would expect that an employer’s decision to treat an employee adversely due to obesity would readily fall into the well of “perceived disability” and not be dependent upon the need to prove an underlying medical cause, no matter what the wording of the legislation.
The Wording of the Ontario Code
While it is so that the wording of the Ontario Code on its face requires that there be an underlying and causal disability proven, the words of the Supreme Court would appear to give every opportunity to argue that it is enough that the employer believed that the person suffered from such a disability.
Adverse Comments on Weight Seen as Sexual Harassment
Certain cases have allowed for a remedy based on sexual harassment or adverse treatment due to gender. The essential framework of the argument is that the conduct which is abusive of the obese or overweight employee is gender biased and hence there has been adverse treatment proven based on gender or conduct which is sexually harassing. All cases referenced show the complainant as female, which need not be the case.
The Ontario Board of Inquiry in found that the female employee was the subject of comments from her co-workers such as “waddle waddle” and “swish swish”, apparently referring to the sounds made by her nylons as she walked by them. Such adverse words in reference to her body size were determined to be a form of sexual harassment.
Similar reasoning was used in to find liability in a second case. The complainant was described as a female wrestler and a Sumo wrestler due to her physical size.
The same ratio appeared in a further case in which the female employee was called a bitch, slut, whore and behemoth. Comments which are intended to refer to women only have been seen as sufficient to be sexually harassing under the Canadian Human Rights Act. The phrase “get off your fat ass” was seen as gender specific and hence actionable under the Act.
Understand Your Rights
This is a complex issue. The concept that the perception of a disability is enough to justify legal action is not intuitive. Further it must be kept in mind that to win a human rights complaint, it is enough that the offensive conduct is an influential factor, not the sole cause for the adverse conduct. If this issue of obesity is a factor in your employment treatment, get advice. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation
 Shaw v Lavac and Robertson (1991), 14 C.H.R.R. D/36
 Egolf v Watson  B.C.C.H.R.D. No. 13
 Fornwald v Astrographic  B.C.C.H.R.D. No. 31