Can I fire an employee for ‘being overweight’?

Earlier this year, New York City made headlines when it proposed a law prohibiting height and weight-based discrimination. The bill, if passed, will ban employers from discriminating against employees or candidates because of their weight – effectively making it a protected characteristic.

Councilman Shaun Abreu, a main supporter of the bill, says he realized that weight-based discrimination was an issue after he gained over 40 lbs during lockdown and was subsequently treated differently.

And with the body positivity movement continuing to make waves, it’s not entirely unexpected news.

According to a survey from Good Houskeeping, 88% of women say their body image is important to them, with 14% adding that they’d trade one to five years of their lives juts for the ‘ideal body’.

Legal considerations around obesity at work

It’s clear that the issue of weight is a universal one – but is it ever permissible to actually discriminate against someone purely because of their size? Speaking to Mike MacLellan, partner at CCPartners, he tells HRD that, legally, it really depends on the job and the circumstances.

“Obesity itself isn’t a protected characteristics under human rights legislation in any Canadian jurisdiction,” he says.

“As such, it’s important to look at whether obesity is protected under the umbrella terms of different grounds – such as disability, for example. If an employee can establish that their obesity is causally connected to a disability, then they would have a proper footing to claim the appropriate human rights protection.”

But what about when your job is dependent, in some way, on your weight?

“The question of weight being an occupational requirement is an interesting one,” says MacLellan. “[It’s] almost like a counterpoint to a prima fascia discrimination on a protected ground. That’s the concept of a bona fide occupational requirement or qualification.”

For example, take the job of a firefighter. The nature of the job means individuals have to be very physically fit in order to execute demanding work. This means running, climbing, carrying – all which could suggest a person may have to be a certain weight. 

“If an overweight person is unable to do the job because of their obesity, there could be - in principle - a bona fide the occupational requirement of a certain standard of physical fitness,” he says.

“On the other hand, if the individual who has obesity, notwithstanding their size and weight, is able to do the job, there would be no bona fide the occupational requirement-type defense for discrimination.”

In Canada, 29% of the population are obese, while 36% are overweight. Data from Global Learning found that one in eight Canadians have experienced some form of weight-based discrimination, with that figure rising to one in four who’ve experience workplace discrimination because of their size.

When appearance leads to an employee’s dismissal

The issue is a nuanced one – and as with all things in HR and employment law, situations should be judged on an individual basis. Take, for instance, a recent case involving Spirit Airlines. A former flight attendant is suing the company after she claims she was discriminated against, and subsequently fired, for her size. Chelsia Blackmon claims that she was terminated because she couldn’t strap herself into a crew jump seat. Blackmon is seeking back pay, damages and legal costs in a trial by jury.

When the case involves appearance, you need to take a step back to the first principles and see what grounds of discrimination it may fall under, according to MacLellan.

“Would it be sex discrimination? Is there a bona fide occupational requirement of objective attractiveness? Is it a client-facing role in a specific industry that means maintaining a certain physical figure?

“Let’s assume for example that a person is hired for the specific job of modelling clothes designed for slender people. The person gains weight and can no longer fit into the clothes they were hired to model. The employer may have a sound defence if they are accused of discrimination.”

However, in a more office-based context, where weight and appearance is not a bona fide occupational requirement, if an employee is demoted or routinely overlooked for promotions purely because of their weight – that’s illegal.

“That would certainly appear to be a form of sex-based discrimination in any Canadian jurisdiction,” he says.