When was the last time your measurements were required for a job? That is precisely the type of information you needed to supply if you were going to apply for the “receptionist/fit model” role with retailer, Lorna Jane. The position combined the role of receptionist and fit model, with the latter requiring the applicant to assist the “Design Team with fittings of new garments.” A particular portion of the job ad however raised some eyebrows and it is reproduced below:

“In order to accurately provide feedback on Lorna Jane products in a size small you must have the following measurements:

• BUST: 87 – 90 cm [34-35 inches]
• WAIST: 70 – 73cm [27.5-29 inches]
• HIP (at widest point): 97 – 100 cm [38-39 inches]
• HEIGHT: 165cm or taller [5’4 or taller]”

Twitter backlash ensued in response to the specific body measurements required and Lorna Jane removed its ad claiming it did not want to disappoint those who responded to the ad.

Regardless of the reason for its removal and the social media backlash that it received, the job ad raises an interesting legal question: can an employer require that job applicants adhere to certain measurements?

This requirement necessarily results in a distinction between applicants – one based on size. But “size” in and of itself is not a prohibited distinction recognized under Ontario human rights law. But that is not the end of the story. Unlawful discrimination can also occur when a requirement has a discriminatory effect (or adverse impact) when applied to a group protected under the Code. For example, and according to the Ontario Human Rights Tribunal, a height or weight requirement could exclude some groups based on ethnicity, race and/or disability, all of which are protected grounds under the Ontario Human Rights Code.

In these cases, however, the requirement can still be legitimate if it is a bona fide occupational requirement (BFOR) and the employer can prove that it:

1. Was adopted for a purpose or goal that is rationally connected to performing the job;
2. Was adopted in good faith, in the belief that it is necessary to fulfill a legitimate work-related purpose; and
3. Is reasonably necessary to accomplish the work-related purpose. Here, employers must show that it is impossible to accommodate the applicant without undue hardship on the employer.

In the case of Lorna Jane’s ad, the measurement requirements are seemingly being imposed to enable the successful applicant to fit into small garments, which based on the ad seems to be an essential part of the role. A quick perusal of the Lorna Jane website seems to indicate that they cater to different sizes so it is not clear whether an alternative to these measurement requirements could apply. So, whether the need to have the model fit into smaller garments is enough to establish a BFOR defense to the distinction created by the ad will depend on the circumstances.

Nevertheless, this ad serves as a good reminder to employers to ensure that job postings can stand up against scrutiny.

Before posting the job ad, it may be a good practice to review the job requirements and ask:

• Are the job requirements necessary and imposed in good faith?
• Will the job requirements result in a distinction?
• Are the job requirements bona fide or incidental and based on customer preferences/stereotypes? (recall Abercrombie & Fitch hiring only “good-looking people to attract good-looking people”?)
• Are alternative approaches available?

Clearly-defined essential requirements which parallel a clearly-defined job description will make a job ad more defensible when it is being examined by legal decision makers, though it may not protect against social media comments!

Parisa Nikfarjam

About the Author: Toronto Employment Lawyer Parisa Nikfarjam regularly speaks to human resources professionals, educators, and business owners about employment law and workplace human rights issues. Parisa has designed and delivers interactive workshops on such topics as youth employment, harassment and bullying, and social media in the workplace.