Yosie Saint-Cyr LL.B.

A recent poll asked if a person’s weight had ever influenced the decision on whether to hire, promote or reward the person. The reason for the interest in the topic? A Quebec lawyer recently sued her former law firm because she believes the firm discriminated against her in employment because she was overweight.

According to the poll responses, out of 315 respondents, 55 per cent said weight never influenced their employment related decisions such as hiring, promoting or rewarding employees. However, surprisingly and almost in equal numbers, 45 per cent (25 per cent yes, and 20 per cent maybe unconsciously) admitted that weight did affect employment decisions they made at their workplace.

Continuing with the story… The lawyer asserts that while employed at the law firm she did not receive the salary and position the firm promised because of the fact that she was morbidly obese, which she considers is a physical disability.

While doing her internship, the law firm was considering her for a position with the tax group. She had advised her superiors that she had health problems due to her weight and would be shortly undergoing gastric bypass surgery. She provided the relevant medical information to her employer and eventually obtained the position on a fixed-term contract that expired a day before the operation. It was understood she would be subsequently rehired to a permanent position following her recovery from the surgery.

Upon receiving her employment contract, she was promised a $60,000 salary and an annual allowance $500 for expenses, instead of the usual $72,000 and $1,200 usually given to a junior lawyer hired by the firm.

To explain this discrepancy, her superiors told her she would receive the $72,000 retroactively when the period of annual salary increase came around. This would happen while she was away.

Upon her return to work after the surgery, her first pay stub reflects a salary based on $70,000 per year instead of $72,000 as promised.

Her superior explained that the firm’s management committee denied the increase despite an excellent assessment of her work.

She continued to fight for an adjustment to her salary, and the firm dismissed her in August 2010.

The lawyer has filed several claims for psychological harassment and unjust dismissal as well as discrimination based on a disability with the Quebec Human Rights Commission. We will be following the outcome of this case.

Physical appearance and human rights

Human rights legislation across all jurisdictions in Canada protects people from discrimination based on their age, ethnicity, gender, religion, sexual orientation, marital status, disability and criminal convictions (grounds may vary by jurisdiction). However, it is not straightforward whether this protection extends to physical appearance.

According to human rights commissions/tribunals and various studies, standards of height and weight are sometimes used to screen or evaluate job applicants, although physical constitution alone does not determine an individual’s ability to perform the essential duties of a job, even if significant physical exertion is required. These standards or selection criteria are based on the average physical stature of men in the majority population group. Women and members of racial minority population groups are on the average physically smaller than members of the majority population group; thus, these groups tend to be disadvantage by height and weight criteria.

The use of height and weight as criteria tends to raise issues of constructive or indirect discrimination because of a disadvantage or adverse impact that may result from the uniform application of an occupational requirement, factor or rule such as height and weight.

As a bona fide occupational requirement (BFOR), height and weight might become a justified business reason for discriminating against a member of a protected class, but only if this rule establishes height and/or weight as a requirement that is necessary to properly or effectively perform a job, and is based on more than the minimum standard for height and weight. For the rule to be a bona fide requirement, the employer must first show that an objective relationship between the standards required and the job exist, and second, that the standard was imposed in good faith.

In 2000, the British Columbia Human Rights Tribunal recognized that obesity can be a physical disability. The British Columbia Human Rights Commission argued that refusing to hire an obese person because of a negative stereotypical attitude is no less objectionable than the refusal to employ a person because of sex, race or sexual orientation. On this argument, the tribunal concluded that an employer that decided not to hire an applicant for no other reason than his size had discriminated against that applicant, and was ordered to pay $11,000 as compensation for lost wages, expenses and injury.

The applicant was hired on the telephone to operate carnival rides. He was 6’1″ and weighed 350 pounds. When he showed up for work, the employer told him he was too big and too heavy for the carnival’s uniform and the carnivals “fast-paced lifestyle.”

Human rights commissions would like employers to discontinue using height and weight criteria in their hiring process. However, if such criteria are necessary to the performance of essential job duties, employers must try to accommodate an applicant and/or employee who is adversely affected, short of undue hardship. For example, an airline’s requirement that male and female flight attendants keep below a maximum weight assigned on an individual basis is a bona fide requirement that is justified by business necessity. The employer might provide accommodation in the form of a weight-loss program for the employee who does not meet the requirement.

Employers must exercise care to avoid making unfair pre-employment inquiries, whether on forms, during interviews or when requesting information concerning applicants. Additional considerations are as follows:

• Questions regarding height and weight or strength may be asked only if the employer can prove these requirements are job-related
• Questions regarding height and weight or strength may be asked when attempting to accommodate an employee and/or to provide mandated uniforms or personal protective equipment
• If the height and weight requirement is essential to measure the amount of strength needed to perform a task, ensure there is evidence correlating height and weight requirements with the requisite amount of strength thought essential to perform the job; adopting and validating a test for applicants that measures strength directly can achieve this purpose
• Female applicants cannot be automatically excluded because a job involves physical labour, such as heavy lifting beyond the capacity of the “average” woman
• Sex-based appearance standards that impose more stringent weight and height requirements on females is discriminatory

Yosie Saint-Cyr, LL.B., is managing editor at HRinfodesk.com–Canadian Payroll and Employment Law News.

Originally published in HRinfodesk–Canadian Payroll and Employment Law News and Developments March 2012.

HRinfodesk is an information and news service that is published by First Reference, which includes employment law news for every jurisdiction in Canada, a Library of Articles, FAQs, a Calendar of Events, Important Dates and an HR Internet Directory for expanded research. Our search tools will help you to quickly find results by jurisdiction, topic, date, keyword and article number. Visit hrinfodesk.com for more information.