Canadian Safety Reporter

3 Canadian HR Reporter, a Thomson Reuters business 2015 News | May 2015 | CSR Disability < pg. 7 Is obesity considered a disability? A look at cases in B.C., Ontario shows challenges of definitions, accommodations BY CASEY DOCKENDORFF IN 2013, 18.8 per cent of Ca- nadians aged 18 and older — roughly 4.9 million adults — reported height and weight that classified them as obese, ac- cording to Statistics Canada. So the issue of whether obesity is a disability is an important one. Some jurisdictions in Canada have expressly recognized obe- sity as a disability, whereas oth- ers have not. These distinctions are based largely on the applica- ble human rights legislation in each jurisdiction and, in partic- ular, how "disability" is defined. An examination of the case law in British Columbia (where human rights legislation does not define disability) in contrast with that of Ontario (which spe- cifically defines disability) high- lights the different approaches. B.C.'s experience British Columbia's Human Rights Code protects employ- ees from discrimination on the basis of disability. However, it does not define the term "dis- ability." As a result, the B.C. Hu- man Rights Tribunal has tended to take a broader approach to protecting obesity as a disability. In 1989's Hamlyn v. Cominco Ltd., the complainant was laid off by his employer and was not recalled when the employer needed several employees to work on a shutdown crew. The complainant, who weighed between 325 and 350 pounds, alleged he had been discrimi- nated against on the basis of his weight. The employer agreed it had not hired the complainant be- cause of his weight, but asserted his obesity was not a disabil- ity because it was a correctable condition. The employer also contended the complainant's weight prevented him from en- tering parts of the plant and us- ing certain types of equipment that were vital to the perfor- mance of his duties. The British Columbia Council of Human Rights (as it was then known) allowed the complaint. It found that the complainant's obesity was a disability because the employer perceived it as such. It cited the employer's evi- dence as to the complainant's in- ability to access certain parts of the plant and equipment. In Rogal v. Dalgliesh (2000), the complainant was denied employment with a carnival op- erator. West Coast Amusements told Bert Dagliesh he was "too big and heavy" for the carnival's "fast-paced lifestyle" and it did not have a uniform large enough for him. The complainant al- leged the decision not to hire him on the basis of his weight constituted discrimination on the basis of a disability. The em- ployer contended obesity was not a disability. But the B.C. tribunal held that obesity is a disability when it impacts the employer's decision not to hire a person. In 2004's Sheppard v. RFCOP Restaurant Holdings Ltd., the complainant alleged discrimi- nation on the basis of disability due to her weight and health problems. Specifically, she al- leged her employer had told her she should lose weight, she would be a drain on the employ- er's extended benefits plan, and RFCOP made other comments related to her mental health. The employer argued the complainant's condition was not a physical disability and it did not stop her from perform- ing her job in any way. The B.C. tribunal disagreed and con- firmed that obesity had been found to be a disability, relying on the Cominco decision. In the 2010 Johnson v. D & B Traffic Control, Kevin Johnson alleged discrimination on the ba- sis of physical disability when he was not called into work as a flag- ger due to his weight. He did not present any medical information stating he had a disability or indi- cating any limitations on his abil- ity to perform his work due to a disability. Nor did he provide any medical reports to support any physical restrictions. In relation to being over- weight as a disability, B.C. tribu- nal member Enid Marion noted: "In my view, simply being overweight is not sufficient to constitute a disability for the purposes of the code. There must be some limitation on the ability to perform the activities of daily living or work in order to constitute a disability. While I accept that obesity may, depen- dent on the circumstances, con- stitute a disability, based on the evidence presented in this case, I am not persuaded that Mr. Johnson has an actual disability." Nonetheless, the B.C. tribu- nal concluded that since the re- spondents "perceived" Johnson to have a disability and this per- ception was a factor in the deci- sion not to offer him work, the complaint was upheld. Ontario's experience The Human Rights Code in On- tario also protects employees who have a disability from dis- crimination. However, the code contains a very specific defini- tion of disability: "Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, with- out limiting the generality of the foregoing, includes diabe- tes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co- ordination, blindness or visual impediment, deafness or hear- ing impediment, muteness or speech impediment, or physi- cal reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device." The requirement that the physical disability be caused by a bodily injury, birth defect or ill- ness is what has caused the most controversy with respect to whether obesity is a disability in Ontario. This is particularly so because obesity is not necessar- ily caused by any of these factors and may be genetic or environ- mental, as seen in 1991's Ontar- io Human Rights Commission v. Vogue Shoes. As a result, the Ontario Human Rights Tribunal has been more reluctant to con- clude obesity is a disability. In the 2011 Hinze v. Great Blue Heron Casino, the ap- plicant alleged he had been terminated in part because of a disability. While the issue in the case was not whether obe- sity constituted a disability, the tribunal held that "there must be some inability to do some- thing others can normally do and substantial limits on one's activities" before a disability can be found to exist. It went on to acknowledge "obesity, unless otherwise caused by bodily injury, birth defect or illness" does not Credit: Suzanne Tucker/Shutterstock

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