Should appearance be protected under the Human Rights Code?

In modern times, society has seemingly become obsessed with appearance. Media, including entertainment news, magazines, television, advertisements, and movies often highlight what society is to deem aesthetically appealing (or not). Bullying, a horrific trend online, in schools and at work, is often (but not always) connected to one's appearance. Bullying and appearance based harassment can be related to both bodily and facial features. Is it a stretch to apply discrimination based legislation to appearance? 

The law is constantly evolving to keep up with the times and human rights law is no different. It may be time to add to the debate protections on the basis of appearance, broadly speaking, which could include weight, height, facial appearance, tattoos, and / or piercings (etcetera).

The unfortunate reality of appearance bias in today's society leads one to consider, should the Ontario government enshrine into human rights legislation a prohibited ground of discrimination on the basis of appearance?

Prohibited grounds used to be based largely on immutable characteristics; however, we are seeing a broadening of protections, such as perceived disability, addictions to gambling, drugs and alcohol, by way of example, as well as prohibited grounds that are within the control of the individual, such as record of offences. In recent times, many tribunals and courts have considered discrimination issues more pragmatically, taking into consideration social context, for example.

One facet of the proposed protection of appearance which often becomes a target for bullies or harassers is weight. Approximately one quarter of Canadians are considered 'obese'; that’s a large portion of the Canadian population. In fact, there are an estimated 1.2 million Canadians that have a body mass index of 35 or higher. Another significant consideration when amending human rights laws is that the prohibited ground be protected on the basis that it affects a large portion of the population. Excess weight, in certain circumstances, can be considered a disability under Ontario’s Human Rights Code ("Code").

A physical disability is defined in the Code as follows: “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness.” In other words, in circumstances where the weight was within  the control of the individual, to either gain or shed with diet and exercise, the protections are not guaranteed. The law states that an argument of discrimination on the basis of excess weight must be connected to some form of illness, disease, injury or birth defect, as it currently stands (depending, of course, on the surrounding circumstances and whether those circumstances are captured by the definition of a disability).

However, the law is evolving. In Lombardi v. Walton Enterprises, 2012 HRTO 1675, the Tribunal considered 'perceived obesity' to be protected under the Act with respect to harassment on the basis of a disability, as it was connected to a thyroid condition; despite the fact that the Applicant was not in fact obese. The definition of disability applied to the circumstances, despite the fact that the harassment based on obesity was not reflected in the circumstances.  

NOTE: Employers must consider allegations of discrimination on the basis of obesity, as whether or not they are human rights issues (connected to a protected ground such as a physical disability), the behaviour is likely to amount to harassment under the OHSA, and as seen in the Lombardi matter, could amount to discrimination depending on the surrounding circumstances.

The Supreme Court of Canada ("SCC") has adjudicated a matter addressing the issue of a 'morbidly' obese person seeking the right to two airplane seats for the price of one, on the basis of a functional disability. The Canada Transportation Agency deemed morbid obesity — defined as having a Body Mass Index of greater 40 — as meeting the definition of disability. The SCC agreed.

NOTE: Employers must accommodate an employee if they cannot move as fast or far, or lift as much (etcetera) on the basis of a functional disability stemming from weight. The emphasis in law is on the distinction, exclusion or preference as oppose to the nature of the disability; meaning, the cause of the disability is less relevant than the differential treatment.

Whether or not obesity should be considered a separate prohibited ground of discrimination is a difficult question to answer. As it stands, the protected grounds are generally immutable characteristics, based on aspects that are out of one's control. Obesity that is not connected to an illness or injury could be within someone's control, but theoretically, could also fall within the parameters of a physical, mental, functional or perceived disability. Compulsive eating, for example, like compulsive gambling and other addictions connected to the ground of mental disability, could, perhaps, in some circumstances, amount to a form of mental disability within a contextual, purposive and/or broad approach to the law. Compulsive gambling and addictions can be connected to a mental disability, so the argument could presumably and  logically be extended to compulsive eating, binge-eating or other eating disorders, which are considered diseases or illnesses. When the result of compulsive eating may result in physical ailments and/or physical impediments, should it not be protected as such?  

An important consideration, however, is that many people who are 'overweight' do not see themselves as disabled. In light of the stigma often attached to being overweight - should one have to be considered disabled in order to expect to be treated with respect and in the same way as others?

The law is moving away from the requirement that all grounds be immutable characteristics. The Supreme Court of Canada decision in Québec v. Boisbriand, 2000 SCC 27 appears to have been the catalyst for discrimination on the basis of non-traditional protected characteristics such as perceived disabilities. 

The SCC stated: "A handicap may be real or perceived, and a person may have no limitations in everyday activities other than those created by prejudice and stereotypes. Courts will, therefore, have to consider not only an individual’s biomedical condition, but also the circumstances in which a distinction is made. A “handicap” may exist even without proof of physical limitations or other ailments. The emphasis is on the effects of the distinction, exclusion or preference rather than the precise cause or origin of the handicap."

In light of this decision and the pervasive reality of bullying and harassment on the basis of appearance, it may be time that society consider protections for people who are unfairly and differentially treated on the basis of their appearance (weight, height, facial features, piercings, tattoos etetera).

Carving out protection for excess weight alone creates a narrow view of a larger issue. Society discriminates on the basis of appearance in many different ways, not just because of weight. Historically, to have excess weight was viewed positively, as a sign of wealth. Shouldn't we take a broad view and prohibit discriminatory and differential behaviour on the basis of appearance when this is more likely to be adaptable to changing times?

With Bill 164 being carried forward at the second reading stage October 26, 2017, now referred to the Standing Committee on Regulations and Private Bills, perhaps it was a lost opportunity to omit the proposal to amend the Code on the basis of appearance. 

Let us know what you think!