“The Human Rights Act does not include appearance as a prohibited ground of discrimination,” says leading employment lawyer Carl Blake
. “So, in theory, there is the ability for an employer to discriminate on the basis of appearance but it would have to be a key requirement of the role.”
The Simpson Grierson
senior associate says there are some industries which may be able to successfully argue that appearance as an integral component to the position – TV or modelling being the most obvious.
However, Blake told HRM that – even in those very limited circumstances – Kiwi employers are still bound by a duty of good faith.
“Assuming someone’s appearance is a key requirement of the role and assuming that’s clearly set out in the employment agreement, then I would say there is a duty on the employer in good faith to help ensure the employee meets the requirements of the role,” he stressed.
“The employer would, in my view, have had to have taken reasonable steps in good faith to assist the employee to meet those ongoing requirements and not just wait until the employee got too overweight before taking action,” he continued.
“They would need to sit down with them, remind them of their obligations, their ongoing requirements of the role to maintain a certain appearance and the employee would need to be put on notice that a failure to meet those ongoing requirements could impact on their ongoing employment.
“It’s akin to a type of performance measure even though it does sound unusual describing it that way,” he admitted.
Auckland-based Blake said Human Rights violations would only arise if the employee’s weight was directly linked to a protected ground under the Act, such as disability.
“Where someone’s weight is an issue for whatever reason – either gaining weight because of a medical condition or simply another reason that is out of the employee’s hands – then it could be argued that any action taken as a result of that which is to their detriment could be claimed to be discriminatory,” he warned.
“If one of these presenters did have a medical condition that caused them to either be unable to lose weight or to gain weight then they could legitimately use the Human Rights Act to say what is happening to them is discriminatory,” he added.
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Yesterday, people all over the world were shocked to hear that Egypt’s state broadcaster had suspended eight employees for being overweight but – as unbelievable as the case might be – it could actually happen in New Zealand too.