Australians could risk paying thousands of dollars for commenting on someone’s height as a state pushes to ban discrimination based on someone’s weight or height.
Western Australia is considering introducing the law that would be similar to a controversial bill passed in New York last week.
The US city has now banned weight and height discrimination, with residents taking legal action if they choose someone in the employment or housing sector.
Perth lawyer Nicholas Marouchak said if enshrined in Western Australian law the rules would flow to the employment, education and sport sectors.
He warned residents could face fines of up to $10,000 if an individual can prove they were singled out because of their weight.
Bosses can take legal action for not fitting their staff with the correct size uniform, while employees have a “low risk” of being sued if they make an offhand comment or ask a sincere question about a colleague’s weight.
“If this is regulated at the national level, the fines for claims will be much higher depending on the extent of the damage done,” Marouchak told Daily Mail Australia.
It comes after a review last year of the Western Australian Equal Opportunity Act, which recommended protecting physical characteristics including weight, characteristics similar to race and age
In WA, it is only illegal for someone to be discriminated against because of their height or weight if it is due to a medical condition
Western Australia is considering introducing the law following a review of the WA Equal Opportunity Act last year.
Recommendations were made to ensure that physical features, such as weight, height, and even hair, are similar to race and age.
In WA, it is only illegal for someone to be discriminated against because of their height or weight if it is due to a medical condition.
But if the state’s Labor government passes the recommendations, they are likely to become law.
Mr Marouchak, who works for MKI Legal, said employees would be given the same ‘protected characteristics’ for their weight as their nationality.
“A company will have to take steps to ensure that this discrimination does not occur in their workplace,” he said.
Nicholas Marouchak of MKI Legal in Perth said if the law passes in WA it will affect a number of areas including education, employment, sport and access to education
If the employer does not take measures to prevent discrimination in the workplace, the employer can be held liable for that of an employee [discriminatory] actions.’
He added that an employer who didn’t do enough to train staff or create policies would be open to legal consequences.
“An employee can also sue another employee – so the perpetrator can also be personally liable,” he said.
Mr Marouchak said the laws would affect a number of areas, including education, sports, employment, accommodation and access to buildings and vehicles.
‘It can very well apply to those areas and that makes sense. And in terms of consequences, it wouldn’t be jail time or anything, it would be a civil remedy,” Marouchak said.
He said if someone goes through WA’s Equal Opportunity Commission with a discrimination claim, the person they sue could be stung with a “small” fine ranging from $5,000 to $10,000.
But if the person lost income or developed a medical condition such as PTSD because of the discrimination, the fines could be much higher.
Mr Marouchak said the sentences pale in comparison to someone going through the Federal Human Rights Commission, where fines can be as high as $100,000.
Proving whether someone is a victim of discrimination depends on the evidence, as the behavior can be very subtle and not easy to identify.
If an employee has been fired because of his weight and he knows it’s because of it, it can be easily proven.
If someone has made “dirty comments” or “made fun of someone who gained a lot of weight because they are depressed,” they could be liable for legal action.
Mr Marouchak said that if it came to a one-off passing comment or a “sincere” question about someone’s weight, it was a “low risk” of being prosecuted.
“If they start attacking them or making them feel bad or victimizing them or bullying them because of their weight, that would cross the line,” he said.
Mr Marouchak said if the laws were passed, companies would have to treat someone’s weight in the same way as other ‘protected characteristics’ such as race
But there are also indirect ways an employer may find itself discriminating against plus-size people through its policies if the laws are passed.
An example is when an employer’s policy only has certain sizes of uniforms for their staff that are not suitable for taller people.
“If the policy is not reasonable, you can indeed sue for indirect discrimination,” he said.
But he added that there are exceptions that could allow an employer to legally discriminate against a disabled person in WA.
If a manager has to hire an employee who can go up and down ladders, he may be legally discriminating against a person who cannot walk.
So the same could be true for an obese person if an employer requires them to climb through tight spaces as an important part of their job.
The Western Australian government has said it accepts ‘most’ of the 163 recommendations made last year in the WA Equal Opportunity Act.
The government has not indicated whether it supports the problem of overweight as a ground for discrimination.
“The McGowan government remains committed to introducing a new equal opportunity law,” a spokeswoman for Attorney General John Quigley told the Western Australian.
‘The bill is currently being developed and the cabinet is in confidence.’
The bill was met with opposition in the US after Joseph Borelli, a member of the Republican and New York City Council, said the law would allow people “to sue anyone and anything.”
In Australia, the ACT and Victoria are the only places where physical characteristics such as weight and height are recognized in discrimination law.
In WA, John Byrne, the state’s equal opportunity commissioner, said the law only protects those who are discriminated against because of their weight because of a medical condition.
This would change if the recommendations of the revision are given the green light in the law.
