Accommodating disabilities is complicated enough without adding grey area to who qualifies, but until the courts are definitive that’s exactly where HR is stuck.
Almost a quarter of Canadian adults are obese, so what does that mean for the workplace? An obese employee might not be able to lift as much, or move as far or as fast, but is that a disability?
Unfortunately for businesses each province has a different answer, with no definitive decision yet, but there are indications of where the law is headed.
A key question revolves around the definition of a disability, which in Ontario is defined as “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness” – indicating that unless obesity is a symptom of another illness it is not covered. British Columbia does not have the same distinction.
The Supreme Court of Canada found that a "handicap" may be actual or perceived and, because the emphasis is on the effects of the distinction, exclusion or preference rather than the precise nature of the handicap, the cause and origin of the handicap are immaterial.
However, conflicting treatment in cases nationwide show the issue is far from decided. A BC decision from the Council of Human Rights found obesity was a disability because it was perceived as such, and this decision has been followed since. The Saskatchewan Court of Appeal found obesity was not a disability if it did not result from a medical condition.
“Based on more recent case law, it is important for employers to recognize that human rights legislation is being interpreted much more broadly and is considering issues of discrimination and disability in a more pragmatic way and with social context in mind,” Casey Dockendorff, an employment lawyer with Filion Wakely Thorup Angeletti, said.
Dockendorff noted that we are seeing new “diseases” accepted every year, with examples such as pathological gambling now being included as a mental disability under specific circumstances.
“I think in Ontario we’re going to continue to see some developments on it, we’re going to start to see more analysis on it, and it’s definitely something people need to keep an eye on,” Dockendorff said. “This whole notion of a perceived disability is really starting to come to the forefront.”
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A 2012 Ontario case found an employee was discriminated against on the grounds of “perceived obesity”, along with a number of other grounds. Although the man was not obese, his coworkers and manager treated him as if he were and this was sufficient for the court to uphold the complaint, however, there was very little analysis of the issue.
Dockendorff hoped to see more analysis in an upcoming decision, Cook v. Stratford (City), which was heard late last year with the decision expected this year.
For now, it was important employers addressed any complaints of alleged discrimination on the basis of obesity, and ensured that they did not bring with them negative stereotypes in assessing an overweight individual’s ability to perform the duties and responsibilities of a position.