Under Australian law there are a number of protected attributes race, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, nationality and social origin. While obesity has been cited in research as causing discrimination in the workplace, under Australian law the treatment of obesity (as a physical disability) is treated on a case-by-case basis depending on the nature of the job and the discriminatory behaviour.
When is behaviour discriminatory?
Behaviour is discriminatory if it does not relate to performance on the job. For example if an employee is hired for a sales desk role, but gains weight and is told they would now be moved to a warehouse role because they no longer fit the image of the company, this behaviour is discriminatory. Equally offensive language designed to humiliate or embarrass the employee is also likely to be discriminatory whether it is directed to the employee or a wider group of people.
Discrimination law also covers "imputed" disability so if roles require physical performance such as running, these should be assessed directly rather than relying on the implied fitness of a person with obesity.
When is behaviour not discriminatory?
Behaviour is not discriminatory where it relates to the ability to perform your role. For example if as part of your role you need to ride on equipment with a safety limit of 150 kilograms, and you weight 160 kilograms your employer can lawfully move you to other tasks. Equally the employer can lawfully not promote or employ people if they are too heavy to use equipment, or cannot fulfil other aspects of the job such as fitting into narrow spaces.
What can I do about obesity related discrimination?
The best and most immediate solution is to discuss the fact you are not happy with the behaviour with your supervisor. You should also keep a record of the behaviour you find problematic. In many large companies you can also meet with your HR department and discuss your options within the current HR policies. In many cases the company may have HR policies in place to cover bullying and discrimination, which go over and above your legal protections.
If you still feel that you may have been unlawfully discriminated against because of your weight, why not meet with an employment lawyer such as Adelaide Legal to discuss the strength of your case and your options for proceeding.Share
20 March 2015
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