July 7, 2003by Israel Foulon LLP
Question: Can obesity be considered a disability under human rights legislation?
Although obesity is not specifically listed as a prohibited ground of discrimination under human rights legislation, courts have recognized that in certain circumstances obesity can constitute a disability. The Ontario Human Rights Commission dealt with this issue in a case involving a retail store employee whose employment was terminated because of, among other things, appearance and poor job performance.
The dismissed employee brought a human rights complaint against the employer claiming discrimination on the basis of sex and handicap. The commission held that obesity does not in itself amount to a physical disability.
But obesity can be found to be a disability where it is an ongoing condition effectively beyond the individual’s control, which limits or is perceived to limit her physical capabilities.
Essentially this means an employee would not be considered to be disabled if her obesity could be controlled through dieting or exercise. Nonetheless employers should be aware that it is possible for obesity to constitute a disability and that potentially an employee could make a claim of discrimination on this basis.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or firstname.lastname@example.org. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today