Introduction

The Code states that it is public policy in Ontario to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination. The provisions of the Code are aimed at creating a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and feels able to contribute to the community.

Standards for height and weight are sometimes used to screen or evaluate job applicants. In the OHRC's experience, this tends to occur in recruitment for occupations that traditionally have been male dominated. These standards or selection criteria are based on the average physical stature of men in the majority population group. Women and members of racialized groups are, on the average, physically smaller than members of the majority population group. Consequently, these groups tend to be disadvantaged by height and weight criteria.

The policy of the OHRC with regard to such recruitment practices is set out below. This policy applies to all height and weight criteria used in the context of employment.

Background

Having two separate sets of height and weight criteria for men and women may reduce the discriminatory impact on women. However, individuals from racialized groups who are on average of smaller build may still be excluded. For example, persons of Asian descent or persons belonging to indigenous population groups from Latin America are, on average, of smaller physical stature than the majority population group in Ontario.

Constructive or indirect discrimination

Human rights claims arising from the use of height and weight criteria tend to raise issues of constructive or indirect discrimination. Constructive or indirect discrimination is defined as a disadvantage or adverse impact that may result from the uniform application of a requirement, factor or rule. It is the OHRC's opinion that height and weight criteria in employment, which on their face appear to be neutral, may in some circumstances contravene section 11 of the Code which states:

(1) A right of a person under Part l is infringed where a requirement, qualification or factor exists that
is not discrimination on prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances[.]

Height and weight as bona fide occupational requirements

The test for determining whether an occupational requirement is bona fide was established by the Supreme Court of Canada in Ontario (Human Rights Commission) v. Etobicoke (Borough) [1982] 1 S.C.R. 202. The Court established that for a requirement to be considered as bona fide, two conditions must be met. First, there must be an objective relationship between the standards required and the job in question. Second, the standards must have been imposed in good faith.

Except in limited circumstances, there is little evidence to demonstrate that height and weight criteria are a bona fide occupational requirement, according to decisions from human rights tribunals in Ontario and other Canadian provinces.[1] Empirical research indicates that physical stature alone is not determinative of an individual's ability to perform the essential duties of a job, even if significant physical exertion is required. As a result, minimum standards for height and weight will not necessarily meet the reasonable and bona fide standard. If so, the defence provided by section 11(1) of the Code cannot be used to justify the requirement, qualification or factor.

Duty to accommodate

It should be noted that section 11 of the Code states that a requirement, qualification or factor will not be considered to be a reasonable and bona fide requirement unless the employer has tried to accommodate persons who are adversely affected. If height and weight criteria are used to recruit for a particular job, the employer must attempt to accommodate women and members of ethnic or racialized groups who are adversely affected by the requirement, qualification or factor. The employer can, however, demonstrate that such an attempt to accommodate these applicants would cause undue hardship[2] or would substantially change the essential nature of the job. In those circumstances, the employer is not required to provide accommodation.

The OHRC's position

The OHRC urges employers who still use height and weight criteria in the employment recruitment process to discontinue the practice. However, if such criteria are maintained on the basis of demonstrated necessity for the performance of essential duties, accommodation of women and members of protected groups, short of undue hardship, is a requirement under the Code.


[1]Colfer v. Ottawa Board of Commissioners of Police (1979), unreported (Ont. Bd. of Inquiry); Hartling v. Timmins (Municipality) Commissioners of Police (1981), 2 C.H.R.R. D/487 (Ont. Bd. of Inquiry). See also Lewington, Moran and Leuszler v. Vancouver Fire Department, 6 C.H.R.R. D/2599 (B.C. Board of Inquiry).
[2] In assessing undue hardship, consideration will be given to the cost, any outside sources of funding and any health and safety requirements. The OHRC's Policy and Guidelines on Disability and the Duty to Accommodate are available on the OHRC’s website: www.ohrc.on.ca .

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