Perception can be a dangerous thing.

Kevin Johnson was a good worker. He had not been given any warnings or notice that his performance was unsatisfactory.

In the spring of 2009, Johnson noticed he had not been called in for work. His roommate who worked for the same company had been called back but Johnson hadn’t heard a thing.

When Johnson called in to find out what was going on he received an unexpected and painful surprise — his employer told him that because of his disability it would be too hard for him to work a long shift as he could not stand that long.

 

But Johnson didn’t have a disability. He was overweight. Believing that this amounted to discrimination, Johnson filed a human rights complaint.

He testified at the recent hearing that he had weight problems when he was hired and had gained weight over the course of his employment.

However, he had never submitted a request for accommodation and did not believe that his weight negatively affected his ability to carry out the duties of his job.

The core issue was that Johnson’s employer believed that he had a physical disability, and treated him negatively because of it. Human Rights legislation across the country protects not only against actual disabilities, but also perceived ones.

This means that all Johnson had to prove was that his employer perceived him to have a physical disability and treated him differently as a result.

In this case, Johnson’s employer told him flat out that he was not being offered work because of what they thought was his disability.

This was a blatant violation of the human rights legislation and Johnson was awarded damages as a result.

Johnson’s case is an important reminder to both employers and employees that what you see isn’t always what you get.

In Johnson’s case his employer’s assumptions about his weight led directly to compensation.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

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