Canadian Employment Law Today

Canadian Employment Law Today | 9 Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends A weighty issue Discrimination on the basis of physical size may become the next big human rights issue BY ASHLEY BROWN THE TERM "fat-shaming" is commonly used to describe an act of ridicule or hu- miliation based on a person's physical size. e scathing critiques Lady Gaga received after this year's Super Bowl performance provide one of the most recent high-profile examples. e numerous and varied public responses elicited by these critiques also il- lustrate it is an issue that triggers lively and heated debate. Weight as a protected ground While differential treatment on the basis of size is an issue that has garnered much attention in the news and social media, it is also a topic that has recently been pre- sented for legislative deliberation. Bill 200 was recently tabled in Manitoba seeking to amend that province's Human Rights Code to include "physical size or weight" as a pro- tected ground. Bill 200 passed first reading in November of 2016. If the bill receives royal assent, Man- itoba will be the first Canadian jurisdiction to explicitly prohibit discrimination on the basis of physical size or weight. It may not be the last province, as various advocacy groups across Canada are calling for similar legisla- tive change. Should physical size or weight be included as an enumerated ground, an employer will be required to demonstrate any discrimination on this basis is justified as a bona fide occupational requirement, and the individual's personal characteris- tics cannot be accommodated to the point of undue hardship — a difficult threshold to meet. A bona fide occupational require- ment might be, for example, the require- ment for all flight attendants be able to reach to a certain height. is qualification, while it may have an adverse impact on applicants of shorter stature, is justified on health and safety grounds, as the applicant would be re- quired to reach emergency equipment. Regardless whether physical size or weight becomes an enumerated ground pro- tected under Canadian human rights law, employers should know that adjudicators have already admonished this type of preju- dicial treatment. Decisions that carry weight In Shinozaki v. Hotlomi Spa, a 2013 On- tario human rights case, the employer was found to have discriminated against the employee, a masseuse, in part because of comments made about her physical appear- ance. When the employee announced her pregnancy, the employer subjected her to a barrage of negative comments including that she was "looking heavier," was "fat," and her "body tone changed." e tribunal found the employer's comments, and subsequent dismissal of the employee, were based on a view the employee's pregnancy — and asso- ciated weight gain — made her a less desir- able masseuse. is amounted to discrimi- nation on the basis of sex. Disparaging remarks or differential treat- ment based on a person's weight can also be evidence of discrimination or harassment on the basis of a real or perceived disability. In Johnson v. D & B (Diane & Brenda) Traf- fic Control, the employee, a flagger on con- struction sites, was denied a job assignment because his employer believed the employ- ee's weight would prevent him from stand- ing for long periods of time. e B.C. Human Rights Tribunal held the denial of the job as- signment was a form of discrimination on the basis of a perception the employee was a person with a disability. Protection against psychological harassment In addition to human rights liability, most occupational health and safety legislation across Canada imposes a positive obligation on an employer to implement policies that prohibit generalized psychological harass- ment and detailed procedures to address occurrences that may arise in the workplace. Harassment is commonly defined as "commentary or conduct that is known or ought to be known to be unwelcome." In some cases, this may include comments or differential treatment based on a person's weight, size…or any other physical attribute. Boucher v. Wal-Mart, a 2014 Ontario wrongful dismissal case, saw the employer face hefty damage awards totalling upwards of $400,000 in large part because of its failure to properly investigate and address humiliat- ing, demeaning and belittling comments by a supervisor toward one of his employees. e harassing commentary was not based on the employee's weight or size; rather on her level of intelligence. Nevertheless, the decision sounds a warning bell to employers. Boucher predates the Bill 132 amend- ments to Ontario's Occupational Health and Safety Act (OHSA), which imposed a posi- tive obligation on employers to conduct an investigation once aware of a complaint or occurrence of workplace harassment. Had Walmart's conduct taken place today, the retail giant may have also been charged with violating the OHSA and faced significant ad- ditional penalties. Practical tips for employers To minimize the risk associated with a com- plaint based on weight or physical size, con- sider the following practical tips: • Implement clear policies and procedures that prohibit harassment on the basis of any protected ground, as well as general- ized psychological harassment. Where possible, it is helpful to provide an example of prohibited conduct to avoid uncertainty. • Regularly train and educate all staff (includ- ing workplace leaders) to ensure everyone is aware of the policies and procedures, as well as expected standards of behaviour. • Address issues early and proactively. If and when you become aware of inappropriate commentary or conduct on the basis of weight or physical size, address it. • Investigate complaints promptly and thor- oughly, following the established proce- dures set out in any existing policy. • Take timely and appropriate corrective ac- tion to deal with the root of any problem uncovered, and restore workplace balance. For more information see: •Shinozaki v. Hotlomi Spa, 2013 HRTO 1027 (Ont. Human Rights Trib.). •Johnson v. D & B (Diane & Brenda) Traffic Control, 2010 CarswellBC 2988 (B.C. Hu- man Rights Trib.). •Boucher v. Wal-Mart, 2014 CarswellOnt 6646 (Ont. C.A.). ABOUT THE AUTHOR ASHLEY BROWN Ashley Brown is a lawyer with Sherrard Kuzz LLP, a management-side employment and labour law firm in Toronto. Ashley can be reached at (416) 603-0700 (Main), (416) 420- 0738 (24 Hour) or by visiting www.sherrardkuzz.com.

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