XXIXth INTERNATIONAL CONGRESS ON LAW AND MENTAL HEALTH

PARIS , FRANCE

JULY 6, 2005

OBESITY AND HUMAN RIGHTS

By Leo McGrady Q.C. , McGrady, Baugh & Whyte , Vancouver , Canada

Introduction. 1

Weight or Body Size Not Prohibited Grounds. 2

Disability and Perceived Disability. 3

Is the Disability/Perceived Disability Analysis Adequate?. 5

Multi-Faceted Discrimination. 8

Uncertain Scope of Protection. 9

Reliance on Medical Evidence. 10

Other Problems with “Medicalizing” Sizeism.. 11

Is the Disability Analysis Itself Discriminatory?. 13

Sizeism as Sexism.. 14

Approaches in the U.S. 15

Conclusion. 18

Introduction

 Scientific literature links certain mental health issues, such as depression, to disordered eating.  Over the past quarter century, one of the primary health policy instruments employed in Canada to address mental health issues has been human rights statutes.  Yet, no obesity-related human rights complaint has been specifically decided on the prohibited ground of mental disability.

Instead, obesity-related human rights complaints are typically framed as discrimination on the basis of physical disability.  In some cases, women may have the additional option of filing a sexual harassment complaint.  While these two distinct analytical frameworks, physical disability and sexual harassment, have allowed some obese people to successfully claim human rights protection, neither offers a complete solution.  This paper will explain why, and also suggests an alternative analytical approach.

Weight or Body Size Not Prohibited Grounds

Human rights statutes are meant to combat discrimination in various areas such as employment, publication, and public services.  Broadly speaking, they do so by enumerating prohibited grounds on which adverse distinctions may not be drawn. 

Obese people undoubtedly experience discrimination.  Research relied upon by the American-based National Education Association, in its 1994 Report on Size Discrimination, suggests that obese people are “highly stigmatized” and that “the socioeconomic penalties for obesity far exceed those for underweight”.[1]  The stigma, the report continues, makes it hard for obese people to succeed on the job or in school.[2]  For instance, overweight people are less likely to attend college, despite high scores on standardized tests.[3]  They may be channeled into low-paying jobs, refused promotions, excluded from office social events, or even terminated as a result of their weight.[4]

 Other U.S. studies show that obese people, particularly obese women, face greater obstacles to finding employment in the first place.[5]  One study found that 16% of employers would not hire an obese woman under any circumstances.[6]  A poll conducted by Business and Legal Reports last month, which asked “Has someone’s weight ever influenced your decision on whether to hire him or her?”, revealed that a job applicant’s weight was an express consideration for 25% of respondents.[7]  A further 35% answered “Maybe unconsciously”.[8]  One Canadian journalist put it aptly: “[F]at is the last socially acceptable prejudice.”[9] Certainly that appears to be the case for 60% of this group of  employers.

In spite of the pervasive stigma associated with obesity, no Canadian human rights statute includes “body size” or “weight” as a prohibited ground of discrimination.  Because there is no direct path to challenging weight-based discrimination, obese people are left to make creative use of existing prohibited grounds in human rights legislation, such as “sex” or “disability”, as a platform from which to challenge sizeism.  As a result, the structure of Canadian human rights statute has greatly influenced how weight-based complaints are framed and, in turn, how they are argued and decided.  I will now highlight some of the limits of these two different analytical models.

Disability and Perceived Disability

A review of Canadian human rights jurisprudence on obesity reveals a number of employment-related disputes framed as disability discrimination cases.[10]  The majority allege improper refusal of employment.[11]  However, the most recent obesity-related complaint from British Columbia, Sheppard v. RFGOP Restaurant Holdings Ltd.,[12] alleges differential treatment on the job - being the only worker out of the workforce totalling between 150-200 treated as an independent contractor and not as an employee.  Ms. Sheppard also alleged she has been subjected to unwelcome weight-related comments at work.[13] 

Two of the successful obesity-related complaints from British Columbia, Hamlyn v. Cominco Ltd.[14] and Rogal v. Dalgliesh,[15] were decided on the basis of perceived physical disability rather than actual disability.  In Hamlyn, supra, the obese complainant was refused a temporary job because of the general foreman’s “impression” that the complainant would be physically unable to fit into vessels and other confined spaces in the industrial plant.[16]  In Rogal, supra, the 6’1”, 350-pound complainant applied over the phone for an out-of-province carnival job.[17]  The day after he presented himself in person, the complainant was told he was too big and heavy for the carnival’s fast-paced lifestyle.[18]

Another interesting aspect of the Rogal decision, supra, is the Human Rights Tribunal’s comment that whether obesity constitutes a disability may turn on a case-by-case review of the medical evidence presented at hearing.  In its discussion of the submissions made by the Deputy Chief Commissioner of the British Columbia Human Rights Commission, who was charged with the task of raising systemic discrimination concerns, the Human Rights Tribunal stated:

There was no evidence presented by the DCC concerning the medical definition of obesity, its causes or its treatment.  …

The DCC is, in effect, suggesting a new test with respect to the definition of disability.  The DCC argues that, where there is widespread evidence of negative attitudes towards people with a certain characteristic (in this case, obesity), that characteristic should be considered a disability.  However, the DCC does not address the implications of adopting such a definition of disability. …

Furthermore, the position of the DCC is not clear.  It is unclear whether the position of the DCC is that obesity should, in every case, be considered a disability, or a perceived disability, or whether the determination should be made on a case by case basis.  It may be that the determination of whether a particular individual who is obese is disabled will be determined on the basis of the medical evidence presented at the hearing.  I note that in Cominco Ltd. v. United Steelworkers of America, Local 9705, [2000] B.C.C.A.A.A. No. 62, the arbitrator concluded, based on the medical evidence before him, that only some smokers (i.e., those who are heavily addicted) were disabled within the meaning of the Code.

[Emphasis added]

Is the Disability/Perceived Disability Analysis Adequate?

In one sense, the fact that obese people have used human rights machinery successfully despite the absence of a specific enumerated ground aimed at weight-discrimination is promising.  Such successes highlight that obese people who suffer adverse treatment are not without human rights remedies.  Further, the interpretation of disability to include perceived disability shows that human rights jurisprudence can, at least on some facts, combat socially constructed disabilities, that is, the assumption that obese people are automatically or inherently limited because of their weight.

What is so striking about this case, and other like it, is that employers often claim to be motivated by the markedly increased health costs incurred for obese employees. Yet  even within the scientific community, there is debate as to the correlation between excess weight and adverse health consequences.  The study, “Excess Deaths Associated with Underweight, Overweight, and Obesity”, led by the Centers for Disease Control senior scientist, Katherine Flegal, and published April 20, 2005 in the Journal of the American Medical Association, estimated that 111,909 Americans died of obesity in 2000.[19]  The majority (73%) of those deaths occurred in people with a body mass index (“BMI”)[20] of 35 or higher, that is, in people with the highest levels of obesity.[21]  People who were moderately overweight (BMI from 25 to 30) not only fared better than those who were underweight (BMI less than 18.5), they were “associated with a slight reduction in mortality relative to the normal weight category” (BMI from 18.5 to 25).[22]  The Globe & Mail described these findings in somewhat catchier terms in its headline: “This Just In: Fat People Live Longer.”[23]

The Flegal study has sparked a great deal of interest because just months earlier, the CDC had estimated the annual obesity-related death toll to be much higher at 365,000.[24]  Based on the lower numbers, obesity drops from the second leading cause of premature death in the U.S. to seventh, behind motor vehicle accidents and shootings.[25]  The revised statistics have led some health policy analysts to comment: “[T]he overweight-equals-early death ‘fact’ proclaimed by the public health community is simply not true.”[26]  Another commentator wrote that the findings were “a body blow to the so-called obesity epidemic”.[27]

Perhaps one of the most effective “anti-fat warriors” is a law professor from the University of Colorado , Paul Campos.  In his recently published book, The Obesity Myth: Why America’s Obsession With Weight is Hazardous to Your Health, he argues that the supposedly devastating medical and economic consequences of excess weight are not scientific fact, but rather a product of greed and junk science.  He suggests that the claims are supported in large part by the weight loss industry, and in other cases by outright bigotry.[28]  Professor Campos characterizes the problem in these terms:

            …the war on fat is an outrage to values – of equality, of tolerance, of fairness, and indeed of fundamental decency towards those who are different.  And in the end, nothing could be easier than to win this war: all we need to do is stop fighting it.

On of the most dramatic illustrations of unjustified weight discrimination in the employment context comes from a recent case involving Northern Burlington Santa Fe Railway (a U.S. national railway company) and an applicant for an assistant signalman position in Richmond , California .  The applicant, Josh Schmidt, was 6’2” and weighed 340 lbs.  He was very healthy and fit.  He passed the interview stage, as well as successfully completing a battery of physical and mechanical tests.  Shortly thereafter, he received a letter from NBSF offering him the job, contingent on several more tests.  These included a background check, drug screening, and so on.  These as well he successfully completed.  He then completed a medical questionnaire, and a physical.  It was only after the physical that he received an e-mail from the company saying that the job offer was being rescinded.  His medical check had been very positive, except that his BMI was above 40, thereby disqualifying him due to “obesity”.[29] Again, the employer expressed concern over the strain hiring such an employee would place on the company’s medical costs.

Although the disability analysis offers overweight complainants some comfort, it is problematic in several regards.  First, the discrimination overweight people face is not limited to the stereotype that they are not healthy or suffer physical restrictions.  Second, there is no definition of “obesity” in Canadian human rights statutes, so the legislation’s protective ambit is unclear.  Third, the disability analysis invites expert medical evidence, which may raise the cost - as well as the privacy implications - of mounting such complaints.  Fourth, “medicalizing” the discrimination overweight people face risks obfuscating the substance of the complaint with unhelpful inquiries such as whether obesity is within the complainant’s control or whether the obesity is a result of an illness.  Finally, the fact that an overweight person who experiences discrimination based on size may be forced to frame his or her complaint as a “disability” in order to ground the statutory authority to bring the complaint at all is, in itself, discriminatory.  Each of these shortcomings will be addressed in turn.

Multi-Faceted Discrimination

Overweight people are not simply judged physically limited or less able. This is but one facet of sizeism.  The evidence before the Human Rights Tribunal in Rogal, supra, was that overweight people may also be perceived to be sloppy, lazy, unattractive, as well as less conscientious, less successful, and less industrious compared to their slimmer counterparts.[30] 

While the disability/perceived disability analytical framework may correspond well to certain allegations of body size discrimination, it is an awkward fit with others.  For example, there is a certain logical appeal to evaluating whether the comment that an obese worker would be “a drain on the extended health benefits plan”[31] constitutes employment discrimination on the prohibited ground of disability because of the link the comment draws between the worker’s weight and her perceived health.  But what if the unwelcome comment had been that she was “a fat slob”?  There is no obvious linkage between the worker’s weight and her physical health or abilities.  Rather, the negative stereotype directed at the worker in the second example is that her excess weight reveals her to be sloppy or unconcerned about her appearance or, perhaps, simply unattractive. 

In sum, the disability analysis does not accurately reflect the complete range of discriminatory conduct overweight people face.  Overweight people, including obese people, may be mistreated not because they are disabled or perceived to be disabled but simply because they form part of an unpopular minority or, more simply yet, because their appearance does not correspond with prevailing beauty norms.  According to the Réseau québécois d’action pour la santé des femmes, a multidisciplinary body concerned with ameliorating women’s health issues, 95% of North American women do not fit within the governing ideals of beauty,[32] which stress not only a youthful appearance but a svelte physique.

Uncertain Scope of Protection

The “fat slob” example raises another related problem - the uncertain scope of human rights protections offered under the disability/perceived disability analysis.  This issue has two aspects. 

First, where does the line fall?  While human rights decisions like Hamlyn, Rogal, and Sheppard, suprae, hold that obesity may constitute a disability, none define obesity.  This uncertainty begs the questions that lawyers love.  For instance, can an overweight (but not obese) worker who is called a “fat slob” by a co-worker launch a human rights complaint?  It would be difficult to mount a credible argument that a few extra pounds render a person disabled.  Further, even if successful, such an argument risks trivializing the ground of disability.  Yet, it is hard to conceive that the harm to dignity and to self-respect caused by such an obviously derogatory comment is any less whether the person to whom it is aimed is twenty pounds overweight or sixty.

More complicated yet, what about individuals who are neither overweight nor obese in an absolute sense, but who nevertheless suffer adverse consequences on the basis of weight? Consider the example of a ballerina who is fired because she is ten pounds heavier than the other dancers in her troop.  Even with the extra ten pounds, it is unlikely that such an athlete would be overweight, let alone obese.  The current disability framework would not offer such a person a remedy.

The ballerina hypothetical is not completely without a factual basis.  In 2003, the BBC reported that Russia ’s Bolshoi Ballet fired one of its most famous female dancers, Anastasia Volochkova, for being too heavy.[33]  The ballet cited concerns over the ability of its male dancers to lift Ms. Volochkova to justify its decision.[34]  According to Ms. Volochkova’s spokesperson, the 5’7” ballerina weighed 50 kilograms or 110 pounds.[35]  At that height and weight, Ms. Volochkova’s BMI is 17.2, making her underweight under the traditional medical model.

Second, who gets to draw the line?  Does the medical definition of obesity (BMI ≥30) govern or some other specific to human rights?  

Reliance on Medical Evidence

The third problem with the disability analysis is that it requires the use of expert medical evidence.  Expert evidence increases the cost of any litigation.  Increased cost, in turn, raises a concern about access to justice.  Nobly-worded protections in a human rights statute are irrelevant if one cannot afford to bring one’s case. 

Furthermore, if the approach suggested by the Human Rights Tribunal in Rogal is embraced, namely, that the determination of obesity as disability may turn on a case-by-case examination of medical evidence presented at hearing[36], then complainants advancing weight-based complaints would likely be required to enter their medical records into evidence.  This could result in a chilling effect on weight-based claims.  Some complainants might well conclude that access to a potential human rights remedy is not worth the intrusion into their privacy.  The same privacy concerns would not arise for complainants relying on other prohibited grounds, such as race or place of origin.  The end result could be that human rights protections for weight-based discrimination are lessened rather than strengthened.

Other Problems with “Medicalizing” Sizeism

The fourth disadvantage to adopting a disability analysis in relation to complaints of sizeism is that the true substance of the complaint may become lost in a line of unhelpful tangential inquiries.  One such unhelpful inquiry is whether obesity is within a person’s control, that is, whether it is an immutable health problem, an argument advanced, for example, in Hamlyn.[37]  Another is whether obesity is caused by an underlying illness or defect.

The issue of immutability or permanency arose in early disability cases because human rights decision-makers were concerned about trivializing this prohibited ground.  For example, the Ontario Board of Inquiry in Ouimette v. Lily Cups Ltd.[38] rejected the Ontario Human Rights Commission’s argument that the flu was a “handicap”.  A significant factor for the Board was the transitory nature of the illness.[39]

The causal link issue arises because of the way “disability” is defined in some human rights statutes.  For example, in seven Canadian jurisdictions – Alberta, Ontario, New Brunswick, Newfoundland, Prince Edward Island, the Yukon Territory, and the Northwest Territories – physical disability is defined as a disability or infirmity “caused by”[40] or “as a result of”[41] “injury, illness or birth defect”.  The arbitrary result is that an obese person with a thyroid problem may seek a human rights remedy while an obese person without an obvious underlying medical problem may be turned away. 

This latter situation occurred in Saskatchewan (Human Rights Commission) v. St. Paul Lutheran Home of Melville.[42]  The Saskatchewan Court of Appeal upheld the dismissal of an obese woman’s employment-related human rights complaint because she was unable to prove her obesity was caused by illness[43] despite the Court’s opinion that:

¶ 10      …[W]e think it offensive for an employer to treat one person less favourably than another, when considering them for employment, on the ground the one is over-weight or homely or possessed of some such personal attribute having nothing to do with that person's ability to perform the work.  Such treatment strikes at the dignity of the person. It constitutes an insensitive and often cruel blow to one's sense of self-worth and esteem. …

At the time the St. Paul complaint arose, the definition of “disability” in the Saskatchewan Human Rights Code included the necessity of a causal link to “bodily injury, birth defect, or illness”.[44]  The complainant’s evidence that her health was “excellent” apparently worked to her detriment.

Authors Harriet Nowell-Smith and Hugh O’Reilly observe in their article, “A Triumph of Substance Over Form in How Discrimination Law Treats Obesity”, the requirement of proof of a causal link “…places an enormous burden on the complainant, who must make out not just the case of his or her experience of discrimination, but also the aetiology of his or her obesity.”[45]

They go on to write that the requirement of a causal link and considerations of immutability are inconsistent with emerging Supreme Court of Canada disability jurisprudence.[46]  They state that: “Somehow,” human rights legislation “must be made to conform to the new principles articulated by the Supreme Court”.[47] 

While it is true, as the authors suggest, that the causal link obstacle that arises in the manner “disability” is defined in certain Canadian human rights statutes may be removed by way of legislative amendment or constitutional challenge,[48] both solutions represent a significant challenge to the average human rights complainant.

Is the Disability Analysis Itself Discriminatory?

The final, most significant, failing of the disability analysis in relation to weight-based human rights complaints is that it may require people who consider themselves perfectly healthy to acquiesce to the notion that they are flawed as a threshold matter.  For example, a heavy-set man terminated from his job because of his “sloppy” appearance has no other option under current Canadian human rights law but to argue he is disabled in order to challenge the employment discrimination he experienced.  The perceived disability analysis does not fit situations where an overweight person is viewed as unattractive rather than functionally impaired.

If the point of human rights legislation is to combat discrimination and the promulgation of negative stereotypes, one wonders how an analytical framework which forces certain complainants, regardless of the actual state of their health or their own perception of their bodies, to argue that there is something seriously wrong with them simply in order to gain access to the human rights regime represents any sort of advance.  Indeed, the disability framework may perpetuate the negative stereotype that large-bodied individuals are somehow flawed or unwell.  From this perspective, the disability analysis, rather than eliminating discrimination based on body size, may actually contribute to it.

Sizeism as Sexism

Another strategy that has been used successfully in a handful of Canadian human rights cases is to argue that derogatory comments regarding weight or body size is a form of sexual harassment.  For example, the Ontario Board of Inquiry in Shaw v. Lavac and Robertson,[49] concluded the “heavy-set” female complainant had been sexually harassed by her co-worker who would say “waddle waddle” or “swish, swish” to imitate the sound of nylons rubbing together when the complainant walked by him.  The same conclusion was reached in Egolf v. Watson[50] and in Fornwald v. Astrographic Industries Ltd.[51]  Amongst other things, Ms. Egolf was called a female wrestler and a member of the sumo wrestling team by her boss because of her physical size.[52]  Ms. Fornwald, who described herself as a “large woman”, was called a bitch, slut, whore, and behemoth at her workplace.[53]

Alleging discrimination on the basis of “sex” avoids the problems of having to show the cause of one’s overweight and obviates the needs for medical records or medical experts.  It also allows an overweight person to challenge discriminatory conduct without the need to assume the mantle of disability.

It should be noted that sexual harassment has been interpreted broadly by Canadian Human Rights Tribunals to cover unwelcome comments that, while not inherently sexual in nature, are “exclusively genderized”.[54]  For example, the respondent’s argument in Fornwald that the insulting phrase “get off your fat ass” was gender neutral was rejected.[55]  The decision-maker wrote:

¶ 46     …[T]here was no evidence before me that the term “fat ass” was applied to any male in the workplace as well.  I am not convinced that [the co-worker] would have sent a note to a lazy male co-worker calling him a “bitch” and asking him to get off his “fat ass”. …  I am satisfied that, at least in the context of the Respondent’s workplace, the term took on a gender-specific character and was applied exclusively as a sexist insult to Mrs. Westle because she is a woman. …[56]

Although the sexual harassment model offers many advantages over disability, it still offers only incomplete protection.  For instance, there are no examples in which an obese man has argued sexual harassment successfully to combat unwelcome workplace comments about weight or appearance.  Further, the sexual harassment analysis would not be particularly helpful in combating more subtle forms of weight-based discrimination, where there are no blatantly derogatory notes or cartoons to file in evidence.

Approaches in the U.S.

For the most part, American human rights systems, as do their Canadian counterparts, analyze obesity and weight-based human rights complaints as a disability issue.[57]  Perceived disability cases are also possible under some state human rights legislation.[58] 

The U.S. disability jurisprudence regarding weight-based human rights complaints suffers from the same failings as the Canadian cases.  For example, the New York Court of Appeals concluded that the complainants in Delta Air Lines v. New York State Div. of Human Rights[59] failed to establish a disability claim because they could not prove that their overweight was linked to an underlying medical condition and because weight, in itself, did not constitute a disability.[60]  The complainants, who described themselves as having “large framed bodies” rather than “obese”, were a group of former Pan-Am flight attendants not hired by successor Delta Airlines because they did not meet Delta’s height/weight charts.[61]  The airline maintained that its height/weight standards were “non-discriminatory grooming standards”.[62]

The Delta case is interesting for two reasons.  First, it highlights the causal link obstacle facing complainants in human rights jurisdictions where “disability” is defined to require some proof of an underlying medical problem.[63]  Second, the appellate court’s finding that “weight, in and of itself, does not constitute a disability” shows the limited scope the disability analysis offers to those who experience weight-based discrimination.

In the more recent case of Whaley v. Southwest Student Transp. L.C. ,[64] the obese complainant’s employment discrimination claim failed because she could not prove that she had a disability, that is, “a physical or mental impairment that substantially limits a major life activity”.[65]  The evidence that Ms. Whaley’s obesity imposed virtually no limitations on her led to the dismissal of her human rights complaint.[66]  The ruling in Whaley, ironically, seems to countenance weight-based employment discrimination against overweight workers who are healthy. 

A handful of American jurisdictions, however, have taken a different tack.  Michigan ’s human rights statute, for example, recognizes both “weight” and “height” as prohibited grounds.[67]  As does Article 33 of the San Francisco Municipal Code.[68]  The city of Santa Cruz passed an ordinance prohibiting discrimination on the basis of “weight or physical characteristics”.[69]  Finally, the District of Columbia prohibits discrimination on the basis of “personal appearance”.[70]

The first case settled under the San Francisco law was that of Jennifer Portnick.  Ms. Portnick, who was 240 pounds, had been encouraged by her Jazzercise teacher to audition to become a Jazzercise certified instructor.[71]  However, when she applied, Jazzercise management told her that she needed “a more fit appearance”.[72]   After Ms. Portnick complained to the San Francisco Human Rights Commission, the fitness company agreed to drop its requirement that instructors look fit, acknowledging that “it may be possible for people of varying weights to be fit”.[73]  Ms. Portnick went on to certify through the Aerobics and Fitness Association of America[74], and to a consultancy with the YMCA Eastbay on that organization’s “health at any size” theme.[75]

Conclusion

While the existing prohibited grounds of “disability” and “sex” offer two different paths to challenge weight-based discrimination in Canada, neither offers a comprehensive, analytically coherent solution.  A more satisfactory response would be to amend human rights statutes to include a prohibited ground such as “body size” or “weight”.  Such an amendment would permit human rights decision-makers to address sizeism directly rather than through a strained, even discriminatory, analysis.