Bona Fide Occupational Requirements

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PREFACESince the Canadian Human Rights Act (CHRA)was first passed in 1977, the law regarding thedefences of bona fide occupational requirement(BFOR) and bona fide justification (BFJ) hasundergone several changes. One of the mostimportant developments occurred in 1999, whenthe Supreme Court of Canada decided two cases 1that have had major legal implications. Theseimplications are most significant for employersand service providers facing complaints of allegeddiscrimination who choose to rely on a BFOR orBFJ defence to justify allegedly discriminatorystandards, policies or practices.These two Supreme Court of Canada decisionsreinforced the duty to accommodate individualswho cannot meet an employment or servicedeliverystandard for any reason related to aground protected by the CHRA, such as disability,sex, family status or religion. They also clarifiedthe nature of the evidence required in cases wherea BFOR or BFJ is raised in defence of a complaintof discrimination.As the Court stated in the first of these decisions:Employers designing workplace standardsowe an obligation to be aware of both thedifferences between individuals, anddifferences that characterize groups ofindividuals. They must build conceptionsof equality into workplace standards. 2The Court expanded on this point in its seconddecision:Employers and others governed by humanrights legislation are now required in allcases to accommodate the characteristics ofaffected groups within their standards,rather than maintaining discriminatorystandards supplemented by accommodationfor those who cannot meet them.Incorporating accommodation into thestandard itself ensures that each person isassessed according to her or his ownpersonal abilities, instead of being judgedagainst presumed group characteristics.Such characteristics are frequently based onbias and historical prejudice and cannotform the basis of reasonably necessarystandards. 3In light of these two decisions, the CanadianHuman Rights Commission integrated the Court'sapproach into its own investigation of complaintsinvolving allegedly discriminatory standards,policies or practices. This document provides anoverview of the decisions and outlines theCommission's current investigation process inthese cases.1 British Columbia (Public Service Employee Relations Commission) v. British Columbia Governmentand Service Employees' Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3, referred to as the Meiorin case; andBritish Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),[1999] 3 S.C.R. 868, referred to as the Grismer case.2 Meiorin, supra note 1 at paragraph 68.3 Grismer, supra note 1 at paragraph 19.| 1
INTRODUCTIONIn the past, courts and tribunals approached andanalyzed discrimination cases under human rightslegislation in one of two ways, depending onwhether the discrimination was first characterizedas either "direct" or "indirect" (also known as"adverse effect").Cases of direct discrimination are those where thediscrimination is apparent from the facts. Forexample, a policy that entitles only men to beemployed as security guards would becharacterized as direct discrimination because itexplicitly excludes women. Indirect discrimination,however, is less apparent at first glance. Forexample, a policy that requires job applicants tohave a driver's licence appears neutral, but thisstandard may exclude applicants who are ineligiblefor a licence based on a disability such as epilepsy.Cases such as this one would be characterized asindirect or adverse effect discrimination.Despite the fact that both policies described abovewould negatively affect individuals based on aprohibited ground in the CHRA, the legal analysisapplied to each type of case was significantlydifferent. The defence of a BFOR/BFJ wastraditionally applied only in cases of directdiscrimination.against by any policy or practice. Section 15(2) ofthe Canadian Human Rights Act now states that:For any practice mentioned in paragraph(1)(a) to be considered to be based on abona fide occupational requirement and forany practice mentioned in paragraph (1)(g)to be considered to have a bona fidejustification, it must be established thataccommodation of the needs of anindividual or a class of individuals affectedwould impose undue hardship on the personwho would have to accommodate thoseneeds, considering health, safety and cost.In 1999, the Meiorin and Grismer cases eliminatedany remaining analytical distinction between thedefences for direct and indirect discrimination.The Supreme Court of Canada provided a unifiedtest to be applied consistently to all BFOR/BFJdefences, regardless of whether the discriminationwas direct or indirect.This change simplified the analysis required indiscrimination cases and ensured that, in all caseswhere a BFOR/BFJ is claimed, the employer orservice provider must accommodate individuals tothe point of undue hardship.This historical distinction between the legalanalysis of direct and indirect discrimination wasreduced when amendments to the CanadianHuman Rights Act were passed in June 1998. Thesechanges made it clear that employers and serviceproviders within federal jurisdiction have a duty toaccommodate individuals who are discriminated2 |BONA FIDE OCCUPATIONAL REQUIREMENTS AND BONA FIDE JUSTIFICATIONSUNDER THE CANADIAN HUMAN RIGHTS ACT
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Bona Fide Occupational Requirements

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