Employment Discrimination
Published with permission of: Jamieson Sterns Barristers & Solicitors
On September 9, 1999, the Supreme Court of Canada released its decision involving a British Columbia firefighter who lost her job because she could not perform a particular aerobic standard required for firefighters. The firefighter's employer said it would only employ firefighters who could meet a certain standard. The firefighter alleged discrimination because few women could achieve the standard. An arbitrator agreed and ordered reinstatement. The BC Court of Appeal disagreed and overturned the decision of the arbitrator. The Supreme Court of Canada reversed the decision of the BC Court of Appeal and upheld the decision of the arbitrator.
Importantly for employers, the Supreme Court of Canada set out a new test for employers who impose standards that are discriminatory because of the very nature of the job. Gone is the detailed technical legal analysis to determine whether or not the discrimination was direct or adverse effect discrimination.
That analysis has been replaced with a three-step test to determine whether an employer has established that a discriminatory standard is a bona fide occupational requirement (BFOR).
- Is the discriminatory standard rationally connected to the performance of the job?
- Is the discriminatory standard implemented in good faith?
- Can the discriminatory standard be avoided without undue hardship.
If an employer sets a standard, which excludes certain individuals, these individuals could allege discrimination. The employer must satisfy the three-prong test to defeat the allegation. The employer must show that the standard is a bona fide occupational requirement rationally connected to the performance of the job that has been set in a good faith belief that it is necessary and cannot be altered without undue hardship.
The Supreme Court of Canada has openly stated that this approach:
- requires employers to accommodate as much as reasonably possible the characteristics of individual employees
- when setting the workplace standard and takes a strict approach to exemptions from the duty not to discriminate, while permitting exemptions where they are reasonably necessary to the achievement of legitimate
- work related objectives.
The court has clearly stated that if the employer requires a discriminatory standard, such that certain individuals will be excluded from the workplace because they cannot meet the standard, the employer must be prepared to justify the standard.
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