Last December, the French government passed a bill decreeing that models must now obtain a medical certification in order to be able to work in France. Companies found not to be respecting the new law will be liable to a fine of more than 75,000 euros (approximately $CAN 108,000 at the current exchange rate) and their directors could also be forced to serve up to six (6) months in prison. France is not the first country to adopt a law banning unhealthy models. In 2012, the Israeli government passed a similar law. In some other countries like Spain, Italy and Denmark, it is the fashion industry that took steps to regulate itself.
There exists no such law or regulation in Canada yet. In the context of employment law, issues could be raised concerning the legality of such restrictions. Refusing to employ someone because of their physical features could indeed be seen as discriminatory. Discrimination is prohibited by section 10 of the Quebec Charter of Human Rights and Freedoms (Charter). Handicap is one of the various prohibited grounds for discrimination enumerated in this section and Canadian courts have held that the notion of handicap must be interpreted liberally. For example, case law has found that obesity can be considered as a handicap, and distinction based on such a physical characteristic can thus be deemed discriminatory. Following this logic, excessive thinness could also be seen as an handicap, and therefore constitute a prohibited ground for discrimination.
Practising discrimination in hiring a person is prohibited by section 16 of the Charter. However, refusing to hire a person following a distinction, exclusion or preference based on the aptitudes or qualifications required for an employment is deemed non-discriminatory following section 20 of the Charter. Hence, employers could possibly justify their refusal to hire unhealthy skinny models by explaining why it is necessary for models to be in good health in order to perform their job. The same justification could be put forward by the government to defend the enactment of a law similar to the one recently passed in France and rebut any claim accusing it of discriminating against skinny models. It would be interesting to see how the Québec Human Rights Tribunal would decide on such a question and whether or not its analysis would take into account how the images that are put forward by the fashion and publicity industries can affect the physical and psychological health of many persons.
In conclusion, everyone agrees that eating disorders are a serious problem that needs to be addressed. However, there is still no answer as to whether legislation or the fashion industry's self-regulation regarding the models' weight and health are viable ways to deal with this sensitive issue.
Written with the assistance of Sarah Hébert-Tremblay, summer student.
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