THE LAW SAYS IT QUALIFIES – SO WHY HAVEN’T EMPLOYERS PAID ATTENTION?
The law has finally caught up with the discrimination that almost every obese person has experienced first hand. In Canada, a disability no longer has to be immutable – that’s the legal term that, up until recently, narrowed the definition of disability to gender, age, sex, race, religion or such traditional physical limitations as blindness or paraplegia.
All that changed when the Supreme Court of Canada ruled in Québec v. Boisbriand (2000) that a handicap is more than a biomedical condition, and can exist outside of functional limitations. It was a comment made in passing in a case that considered claims by two individuals under the Quebec Charter of Human Rights and Freedoms, but it set the stage for change. “Boisbriand offered the view that you can’t decide what disability is virtuous and what isn’t,” says Hugh O’Reilly, a lawyer who heads the pensions and benefits practice group of Cavalluzzo Hayes Shilton McIntyre & Cornish in Toronto.
The expanded definition of disability is no longer predicated on no responsibility for the disability or an inability to change the circumstances of that disability. This means that non-traditional disabilities, such as alcoholism, drug addiction and obesity, may now be considered disabilities. “Boisbriand took away the concept of immutability and put all forms of discrimination and disability on an even playing field, so a court or tribunal would scrutinize appropriately,” says O’Reilly.
His analysis in a 2003 Canadian Bar Review article examines obesity as a basis for claiming protection under Canada’s human rights legislation. “Under this broader framework, social responses to a physical condition are seen to disable someone as effectively as an illness or injury,” writes O’Reilly and co-author, Harriet Nowell-Smith. “ ‘Functional’ and ‘perceived’ disabilities now have the same effect in law: both can be grounds of prohibited discrimination.”
This point of view legitimizes what obese people have long known to be true. “There is certainly literature to show that people who are very overweight are likely to be discriminated against in hiring and in terms of accommodation and housing,” says Dr. Mike Condra, assistant professor in the departments of psychology and psychiatry at Queen’s University in Kingston. “They experience overt and covert discrimination.”
When people in the workplace — or in the provision of services — are treated in a discriminatory fashion, it potentially gives rise to a human rights violation. In the workplace, for instance, obesity discrimination may even extend into how benefit plans are operated.
“Coverage for certain pharmaceutical products that assist people in weight loss may be denied,” says O’Reilly. “Employers sometimes put in place lifestyle criteria when they aren’t necessarily applicable. There is lots of evidence that no matter what they do, a significant portion of obese people don’t actively, effectively lose weight.”
Dr. Condra cites the strong stigma associated with obesity as the basis for discrimination. “At times, obesity is seen as a sign of weakness or laziness,” he says. “Often people explicitly ridicule and are verbally very judgmental and punitive about people who are overweight. So, obesity won’t be widely seen as a disability until we stop seeing it as a sign of weakness.”
What we need, he says, is a paradigm shift. Once obesity is recognized as a genuine significant health problem rather than a sign of moral turpitude, public opinion will shift in the same way it did for substance abuse. “Alcoholism was once seen as a sign of weakness and moral degeneration,” says Dr. Condra. “Now it is seen as a disease.”
Until this shift happens, however, obesity discrimination will have to be fought one battle at a time. None has been better covered than the ‘One Person, One Fare’ policy that went into effect in January 2009 for the country’s national domestic airlines — Air Canada, Air Canada Jazz and WestJet.
Three separate complaints regarding the treatment of disabled passengers, lodged with the Canada Transportation Agency (CTA), were the catalyst. Only one involved obesity. At the time, the airlines required passengers who needed a personal care attendant in flight to pay for an extra seat for that person. Soon, people struggling with obesity came forward and said they were also being charged for an additional seat if they needed extra room. In the end, the CTA, whose mandate is to remove undue obstacles to transportation for persons with a disability, deemed that morbid obesity — defined as having a Body Mass Index of greater 40 — can indeed be a disability. The Agency found people who have a disability and require a second seat should not be charged for it. However, this ruling applies only to domestic flights, and larger passengers must prove they are disabled by their excess weight.
“The ruling says that people with obesity are one person buying one ticket,” says Natalie Hanson, spokesperson for the CTA. “Even though a person with a disability may take up more room or travel with an attendant or need more room for a guide dog. The fare applies to the person and not the seat.” In response, the carriers have developed internal policies and screening processes to determine if obese passengers qualify for a second seat. Neither size alone nor external medical approval confirm the right to an extra seat.
If and when obesity gains acceptance as a disability, both socially and legally, the implications are wide ranging. Public institutions and buildings, such as movie theatres, restaurants, hospitals, schools and even prisons, would have to make changes to their infrastructure — wider turnstiles and hallways, bigger chairs, reinforced seating — to accommodate obese people.
“This is an issue that the government is not likely to step into without a lot of background work, particularly by health care professions, which would recognize obesity as an immutable condition,” says Dr. Condra. “At a grass roots level people who are obese have been fairly effective in organizing [themselves], and I know they have worked with legal groups to test the view of obesity as a disability to insure that they are not discriminated against. That kind of alliance between legal groups fighting for human rights and the morbidly obese is really important.”
Until then, obese individuals may have to fight discrimination one employer — and once legal case — at a time.