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
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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