Protection for Appearance-Based Discrimination in Canada

What protection is there for being discriminated on the basis of one’s appearance?  The answer is “not much.”

At present, in Canada, there is no legislation that explicitly prohibits discrimination based solely on appearance.[1]  What little protection exists is found in human rights statutes and must be tied to enumerated, prohibited grounds of discrimination.

“Human rights legislation in Canada and the Canadian Charter of Rights and Freedoms (collectively, “human rights law”) have long focused narrowly on a closed category of relatively immutable personal characteristics such as race, sex and religion as grounds of impermissible discrimination.”[2]  The human rights codes of all of our provinces prohibit discrimination based on sex, race, religion, age, and other grounds and some protection against appearance based discrimination is offered under those aegides.  This is because of the intersectionality of appearance-based discrimination: “Appearance overlaps significantly in many respects with a number of the grounds upon which our society prohibits unfair discrimination”[3] such as sex or disability.  However, the protection offered on these grounds is inadequate.

For instance, a woman discriminated on the basis of wearing a hijab could not make an appeal to any appearance discrimination provision, but could allege discrimination on the basis of religion.[4]  A woman who is fired for not having long hair similarly could not make an appeal to any appearance discrimination provision because none exists, but could allege discrimination based on sex if the same standard was not applied equally to employees of both sexes.  Thus, one can say that there is some protection.  The protection, however, is limited, especially when the appearance cannot be linked or is tenuously linked to a prohibited ground.

For instance, obesity is not a ground for discrimination in current human rights legislation.   Obesity has often been classified as a disability[5]; however, this classification is weak.  Protection from discrimination on the basis of weight has often had to be linked to the prohibited ground of physical disability in order to be recognized, and this has proven problematic.

I will explain why in a subsequent blog post.

[1] Rudner, Stuart, “The look: The fine line between job description and discrimination” The Lawyers Weekly, Nov. 4, 2011, http://www.lawyersweekly.ca/index.php?section=article&articleid=1531

[2]Nowell-Smith, Harriet and Hugh O’Reilly, “A Triumph of Substance Over Form in How Discrimination Law Treats Obesity” (2003) 82 The Canadian Bar Review at 682 [Nowell-Smith]

[3] Pieterse, Maurius, “Discrimination Through the Eye of the Beholder,” (2000) 16 S. Afr. J. on Hum. Rts. 121

[4] Hewitt, Ann, “’It’s Not Because You Wear Hijab, it’s Because You’re Muslim’ – Inconsistencies in South Australia’s Discrimination Laws” (2007) 7 Queensland U. Tech. L. & Just. J. 57 at 57

[5] Dockendorff, Casey M. “Is Obesity a Disability?” Filion Wakely Thorup Angeletti LLP