“Don’t change your body; change the rules.” — Jennifer Portnick
Assumptions, stereotypes, stigmatizations and concomitant discrimination with regards to health and appearance abound, not only in the medical community, but in society at large, and especially within the employment context.
Appearance discrimination is pervasive. Twenty-five per cent of obese employees say they regularly suffered negative comments about their weight from co-workers. [1] In a study conducted in Britain, twenty-five per cent of male bosses and 15 per cent of female bosses stated that “they would turn down a potential candidate solely on the grounds of the person being overweight. In fact, 10 per cent of the managers said they routinely reject candidates who are overweight. The most common reasons employers gave? Perceptions that obese people are “less energetic, lack self-control or are not hard workers.”[2]
Who is to decide the level of one’s health or assess whether one’s appearance is acceptable? Jazzercise believed that they were the rightful arbiter. Jennifer Portnick was an aerobics instructor who weighed 240 lbs.[3] By all objective standards, she was in good cardiovascular shape and worked out six times a week.[4] All that she lacked was the “appearance of fitness” which was important to Jazzercise since they were in the business of selling health. It was on this basis that they denied her employment. Portnick filed a discrimination complaint against Jazzercise. After mediation, the case settled and Jazzercise changed their company policy.[5] They conceded that “recent studies document that it may be possible for people of varying weights to be fit,”[6] and that “Jazzercise has determined that the value of ‘fit appearance’ as a standard is debatable.”[7]
Anyone with a sense of morality and justice would agree that discrimination based on one’s appearance is problematic at least, abhorrent at most. But is it legal? In Canada, yes. At least implicitly. It takes some legal maneuvering in order to stretch the protection to appearance.
Human rights legislation and grounds of discrimination were instituted because such discrimination was an affront to human dignity and equal opportunity.[8] As a society, we want hospitable and welcoming places in which to work, play and learn. We want to be treated fairly and have our work assessed on its merits. We want to be judged, not by the colour of our skin or, I might I add, our sex, race, age or disability, “but by the content of our character.”[9] Discrimination disallows this normal healthy engagement in one’s life. Such is also the case with appearance based discrimination. Overweight workers are often teased at work and seen as less desirable colleagues.[10] They are stereotyped as lazy, and undisciplined.[11] Surely there should be some legal protection against such affronts to human dignity. Unfortunately, surprisingly and embarrassingly this is not the case in Canada, and we need to institute possible new avenues for protection.
[1] Immen, Wallace, “The Skinny on Weight Discrimination” Globe and Mail, Jan. 22 2010
[2] Ibid.
[3] Brownell, Kelly D. Weight Bias: nature, consequences, and remedies, New York: Guilford Press, 2005 at 205 [Brownell]
[4] Ackman, Dan. “The Case of the Fat Aerobics Instructor” Forbes. May 9, 2002 http://www.forbes.com/2002/05/09/0509portnick.html
[5] Ibid.
[6] Ibid.
[7] « Jazzercise Settlement Redefines Who’s Fit » May 10, 2002
http://abcnews.go.com/GMA/story?id=126114&page=1
[8] Rhode, Deborah L. The Beauty Bias. Oxford: Oxford University Press, 2010 at 93 [Rhode]
[9] Martin Luther King, “I Have a Dream” Speech, 1963, March on Washington
[10] Supra note 8 at 94.
[11] Ibid at 94.
Cover Photo Credit: Photo of Jennifer Portnick by Paul Chinn for SF Gate
Photo Credit: Photo of Jennifer Portnick by the Enquirer
Simone Samuels 
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