A TRIUMPH OF SUBSTANCE OVER FORM IN HOW DISCRIMINATION LAW TREATS OBESITY

Abstract

Recent developments in human rights law at the Supreme Court of Canada suggest a new approach to the analysis of discrimination based on disability. Subjective perceptions of disability that lead to unlawful social responses to a physical or mental condition are now seen to disable an individual in the same way that an injury or illness may, regardless of the cause or the nature of the disability. Discrimination on the basis of disability is now being treated in the same way as discrimination on the basis of other grounds, such as race, religion or sex. The new approach to disability discrimination dramatically changes the structure of the legal analysis and with it, the nature of the onus on complainants . It also allows the recognition of conditions such as alcoholism and drug addiction as disabilities under human rights law. In this paper we apply the new jurisprudence to obesity and conclude that obesity can he a disability under human rights law. We test this conclusion by examining whether excluding obesity drugs from employee benefit plans could give rise to successful human rights complaints .