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Is staff obesity really an employment issue?

13 October 2015


We have been told for some years now that the West is growing fat.

We are told that young children in New Zealand, along with their counterparts in Australia, and the United States and beyond, are getting fatter every year.

Few people want to be fat. A slim and toned body, according to conventional wisdom, is desirable. Ironically, this too has caused issues.

This standard of beauty, particularly for young women, has contributed to a generation of young people with an unhealthy expectation for their figure. This has led to issues such as low self-esteem and, at its worse, conditions like anorexia for a number of young people.

These trends are playing out in the employment context.

An update of an Otago University study that has been following the lives of 1200 Christchurch children for almost four decades has produced some interesting results.  One recent conclusion the study made was that fat men were likely to make more money than slim men. In contrast, fat women were likely to make less money than slimmer women.

The associate professor conducting the survey, John Horwood, commented that one explanation may be that the prevailing Western view is that female obesity is undesirable and unattractive.

No explanation is given as to why obese men make more money than their slimmer male colleagues. This probably reflects social attitudes but there may be other reasons at play. Readers will have their own views.

Is the law on discrimination relevant?

Being overweight is not a prohibited ground of discrimination under the Human Rights Act as such. However, if the affected person has a medical issue causing them to be overweight, then arguably any adverse treatment they experienced would fall within the prohibited grounds of unlawful discrimination based on a disability.

Another approach to this issue of an observable disparity of pay between genders based on a person’s weight is that a woman in such a situation has been discriminated against on the grounds of her sex. This is not easy to prove, however.

One leading case on sexual discrimination was between Melissa Trilford and Car Haulaways Limited. Trilford took legal action against Haulaways because she was not offered or considered for the transport supervisor’s role within the company. The branch manager told her that the role was more male-orientated.

When Trilford challenged management on this, they promptly changed their tune. They said the reason she was not considered was because she did not have the required experience. This seemed strange as she had been active in the role on a number of occasions.

Trilford resigned and took her case to the Employment Court, claiming she was not considered for the role because of direct and indirect sexual discrimination.

The court found that the employer’s explanations for failing to consider Trilford were inherently improbable and highly unconvincing. It held that the true reason why Trilford was not considered for the role was because her employer did not consider that a woman should be appointed within the company’s management structure.

The court reached this conclusion relying on the employer’s statement that the role was “male orientated”.

Importantly, the court stated that discrimination could include discrimination that has the potential effect of excluding most women. It does not have to directly refer to sex.

So overweight women who are discriminated against in their employment, where a man would not be, could try to argue that they have been discriminated on grounds of sex and perhaps also disability. Unfortunately, unless a blatant admission has been made by the employer - like in Trilford’s case - the prospects of success are likely to be low.

No court case is likely to ever cure the issue identified in the Otago University report. It rests on us all to deal with our own prejudices and how they may be affecting our decisions. Healthy eating and respecting others, regardless of size and sex, all have a part to play.

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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