Court rulings raise issue of obesity as a disability, says Toronto lawyer

Court rulings raise issue of obesity as a disability, says Toronto lawyer
Casey Dockendorff
Canadian courts are coming to recognize obesity as a disability and employers should prepare their workplaces to accommodate overweight workers, one lawyer says.
The tendency to see obesity as similar to a physical or mental disability stems from a growing consensus among judges that a disability does not require a definite cause, says Casey Dockendorff, an associate at Filion Wakely Thorup Angeletti LLP in London, Ont., in a paper delivered at a seminar in Toronto recently. In several cases over the past decade, judges have ruled that obesity is a disability as soon as an employer perceives it as such.

The key ruling was a Supreme Court of Canada decision in 2000, she says. It expanded the definition of “disability” since the judges ruled while a disability clearly includes conditions with medical or physical limitations, it may also include conditions that have subjective limitations — that is, conditions that some people believe limit a person’s abilities to do a job.

This approach, Dockendorff says, reflects the trend towards a broader interpretation of human rights law. In general, courts today are looking at the issue of disability and discrimination in a more pragmatic way and are taking social context into consideration.

“They’ve said it’s quite offensive to make a distinction based on someone’s weight. And it’s not as easy for someone to control their weight as some might think,” she says.

“There’s a lot more to obesity — whether it’s diabetes influencing it, certain mental health issues — that’s the recognition that the Supreme Court of Canada has given it.”

This decision marked a major departure with human rights law in jurisdictions such as Ontario, where the Human Rights Code has defined a disability as a physical disability that is caused by “bodily injury, birth defect or illness.” The Saskatchewan Human rights Commission, as well, requires a complainant who seeks to show discrimination on the basis of a disability to prove the disability was caused by a medical condition.

On the other hand, the paper says, the decision was in line with rulings issued by the B.C. Council of Human Rights. In 1989, for example, it ruled against a boss who admitted he had not called back a former employee (who weighed 300–325 pounds) to work on a shutdown crew because of his weight. The employer argued the complainant’s weight prevented him from entering parts of the plant and using some equipment essential to the job. He also said it was not a disability because it was correctable condition. The council concluded obesity was a disability in this case because the employer believed it would limit the complainant’s ability to do the job.

“B.C. seems to have accepted obesity as a disability even where there may not be any evidence of a causal link to an illness,” Dockendorff says. “A lot of the cases refer to perception. If someone is obese and an employer doesn’t allow them to do something or makes a distinction based on that obesity, then that perception, based on the Human Rights Tribunal in B.C., is enough to say that that is discriminatory.”

While the human rights tribunals are bound by Supreme Court decisions, every case is decided on its own facts and according to the law of the province in which it takes place, she explains. Thus, in the first case in Ontario following the Supreme Court’s 2000 decision, the judges again decided that obesity did not constitute a disability because there was no evidence linking it to an illness or injury.

Still, Dockendorff says, it’s important to note that obesity could be ruled a disability in Ontario if a plaintiff could connect it to an injury, birth defect or illness. Moreover, though Ontario has so far limited itself to the strict language of its human rights code, she believes the tribunal, too, will come to accept that the perception of a disability can constitute discrimination.

“I think it’s a matter of time. Many things that weren’t recognized 20 years ago are starting to be, as the medical and legal landscapes change. Alcoholism, for example — about 30 years ago, no one would have viewed that as a ‘disability,’ but now there’s a very clear acceptance of it,” she says.
As the legal view of obesity changes, Dockendorff says, employers need to be more cautious in the way they deal with overweight workers. When conducting a recruitment campaign, for example, they should follow the same process in regard to obese applicants as they would with applicants with any other disability.

Thus, after assessing the person’s skills and qualifications, the employer needs to decide if the disability is likely to affect any essential duties of the job. If so, they must determine what kind of accommodation is required — for example, providing a chair for a person to sit down or buying larger-sized PPE — and whether the company is able to provide that accommodation. (Employers are required to accommodate a worker with a disability to the point of undue hardship.)

“The analysis is no different,” she says. “The distinction with obesity is that the employer may need to do a little more digging after a conditional job offer has been made to determine whether it’s a legal disability."

“But if an employer saw an obese person come in for a position, and they said ‘I’m not hiring them because they are obese,’ they may see themselves in hot water.”

Dockendorff also recommends companies adopt policies on workplace behaviour that go beyond the legally required prohibitions, such as against harassment and violence, and encourage respect among workers. These policies may deal with appropriate discourse, for example, urging workers to avoid comments that denigrate others.

“If you address it at that base level and create an environment of respect, you’re going to be much better suited as an employer, as opposed to just trying to limit [the precautions you take] to that legal question, ‘is it discriminatory?’ ”

In the 12 years since the Supreme Court’s decision, few cases alleging discrimination on the basis of obesity have gone to human rights councils — a fact that Dockendorff found quite surprising.

“I was shocked that we as a country hadn’t addressed the issue more. Given that one in four of our working population is obese, why haven’t we seen more of this?” she says.

The small number of cases may be a sign, she adds, that employers are taking obesity into consideration and accommodating employees even though they are not legally required to.

Ounce of prevention
There are many practical steps employers can take to help workers stay healthy and maintain a good weight, says Emma Ashurst, an occupational health and safety specialist at the Canadian Centre for Occupational Health and Safety.

By providing kitchen facilities, for example, such as a fridge and eating area, they give employees a way to store and prepare fresh fruits and vegetables at work. And, instead of just chocolate bars and pop, office vending machines should offer healthy options, like low-fat granola bars or fruit juice and water.

Employers can also make a big difference by providing information on healthy eating through events like lunch-and-learns, where a nutritionist from Public Health can come in and conduct sessions on how to plan a satisfying lunch or ways to increase activity during the work day.

Most important, the goal of keeping fit should be incorporated into the company’s wellness program and employers should consult workers on what strategies they prefer, Ashurst says.

“You can ask some questions, like what do you want? Would you like structured fitness breaks? Should we try and get discounting at a gym? Or more flex time, so if you want to work out in the morning you could come in a bit later?” she says.

“It’s not going to be perfect in every workplace, but the more you can get buy-in from everybody and everybody works together, that’s your best case scenario. It comes down to providing healthy options for people and for workers to know what those healthy options are.”

Workers also need to become more aware of what they can do to eat better and increase their activity. Ashurst advises workers to take back their lunchtime. Too many people stay in and eat at their desks, but leaving the office and going for a walk provides a real break that is good for both the body and mind. 

Stress can be harmful to the body, Ashurst says. By treating all employees fairly and respectfully, and by ensuring workloads are balanced, employers can reduce stress in the workplace. Stress is often a product of a sense of lack of control, so employers should try to involve workers more in decision-making and keep them informed.

“They should be communicating expectations, so there are no real surprises. Everyone’s on the same page, and everyone knows what’s going on,” she says.

Workers themselves should develop coping skills and recognize their warning signals, Ashurst says. The ability to anticipate stressful situations allows a person to work through them much easier. It’s also important to learn how, in some situations, not to stress at all.

“Sometimes, we don’t have control over the work we do,” she says. “Don’t stress the things you can’t control; worry only about the things you have control over. This is an important tip for your home life, for relationships and for the workplace.”