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Could weight eventually be a term of employment?

Curt Schilling, a pitcher with the Boston Red Sox, has agreed to stay on for another year. In addition to $3 million in potential performance bonuses, he can make an extra $2 million by meeting certain weight goals in the contract. It seems like they want Curt trim and fit. The thinner he is, the more money he makes.
 
Given that Curt is a sports professional, there is a clear relationship between avoiding unnecessary weight and the performance of his job. But it is a bit of an insidious concept. Who knows where it might end up?
 
After all, we keep reading about these surveys that tell us that thin people are perceived as being competent and successful whereas not thin people are perceived as lacking self-discipline and somehow just less competent.
 
If we take those surveys as an accurate indicator of common perception, as a business owner, I should then prefer all the lawyers in my firm to be thin and fit. They will be perceived, according to the survey, as more competent therefore they will have more clients and do more business than those who are not thin. So, under this theory, I have a business interest in my employees not carrying around extra pounds.
 
So, what if I, after consultation with the medical experts, set a goal weight for each of the lawyers in the firm that put them within a healthy range? What if I then told them that their income would be reduced by $1,000 for each pound, or perhaps 5 pounds, that they are over their goal weight and that random weighing would occur? Would I have broken any laws?
 
Well, actually, no. The Ontario Human Rights Code prohibits discrimination on the basis of a disability but thus far, the Ontario Human Rights Commission has not found even obesity to constitute a disability. I imagine that some day obesity will be found to be a disability but obesity is not just being 20 pounds over your goal weight.
 
Assuming that I applied my brilliant policy to all lawyers regardless of gender, race, colour and creed, etc., there would be no law I was breaking.
 
I would need to give reasonable notice to everyone that the policy was going to be put in place. After the goal weights were set I could tell everyone that they had 12 months to get to their goal weight and that after that their income would suffer.
 
If my diabolical plan did not achieve the results desired and I discovered that the lawyers in our firm would rather stuff their faces than make more money, I could always hike it up a notch.
 
Instead of just taking money away, I could change it to a disciplinary process. I could set goal weights and tell the employee that if they did not achieve them, they would receive a warning and, later, if they are still packing too many pounds, a suspension without pay. If that didn’t work, perhaps a termination. Oh, I would have to pay them a severance package because not being thin enough is never going to constitute just cause for a termination without severance, but if I wanted to spend the money I could do it. There are no laws against it.
 
At this point you’re probably scanning up to my picture and thinking that this is the pot calling the kettle black. You may be wondering if my partners would actually let me do this. Well, they wouldn’t and I would never institute such a policy. My point is that it wouldn’t be illegal if I did.
 
And perhaps it should be. Although instituting such policies may not violate the Human Rights Code it is a distasteful invasion into the private lives of employees. We hear about cases in the U.S. where employers have terminated employees who don’t quit smoking even outside of work.  Perhaps requiring everyone in the office to attend fitness or only wear environmentally friendly hemp clothing would be next.
 
In a healthy economy like we presently enjoy, employers would rarely attempt this big brother approach with employees as they would soon find their offices empty. But in a recession when employers have fewer jobs than applicants, their sense of common decency  and boundaries may fail them.
 
While one is not tempted to sympathize with Curt Schilling getting an extra $2 million a year to keep the weight off, it could be the beginning of a slippery slope to something far more draconian.
 
As published in The Hamilton Spectator, November 10, 2007.
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com