How an Infringement can be Justified

Picking up from “Establishing Prima Facie Discrimination,” Moore v. British Columbia (Education),(2012) states

Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under the human rights statutes. If it cannot be justified, discrimination will be found to occur.

Essential Duties or Requirements of the Position

Within Canadian human rights legislation, there exist specific exclusions to prohibitions on discrimination. These have been termed essential duties of the position or bona fide occupational requirements. Employers are required to lead evidence of such a defence in order to justify discrimination. Otherwise, a finding of prima facie discrimination will be sufficient to ground a complaint.

For example, Tribunals have found in the past that it was reasonably necessary to enforce a mandatory retirement age of 65 in order to ensure the safe, efficient and economical performance of a bus driver position, despite the fact that prima facie discrimination had been proven. In certain instances, the rights and safety of many may trump the rights of the few.

For example, section 17(1) the Ontario Human Rights Code states; A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

Due to provisions like this, the government and private employers are able to draw reasonable distinctions in order to carry on business expeditiously. For example, a blind helicopter pilot would be required to see to carry out the essential duties of his job, and therefore, would not likely be able to ground a successful disability complaint.

Similarly, a personal support worker required to do a great deal of lifting patients would not be able to ground a successful disability complaint if they were diagnosed a quadriplegic and denied a job at a nursing home.

The Meiorin Framework and Bona Fide Occupational Requirements

In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999], more commonly referred to as Meiorin, the Supreme Court of Canada articulated that an employer may justify the impugned standard by establishing on the balance of probabilities:

1) That the employer adopted the standard for a purpose rationally connected to the performance of the job;

2) That the employer adopted the particular standard in an honest and good faith belief that it was necessary for the fulfillment of that legitimate work-related purpose; and

3) That the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing an undue hardship upon the employer.

At the first step, we inquire into the standard in question and what it is intended to achieve. A common general purpose of these standards is to ensure general safety which would be rationally connected to a standard of wearing hard hats on a work site or wearing mobile panic alarms in a prison or requiring employees be drug free while operating heavy machinery. Other objectives mentioned in Meiorin are maintaining religious integrity in a school setting and preventing conflicts of interest arising among employees.

In fact, the threshold only requires that “the protected characteristic was a factor in the adverse impact.” It does not have to be the defining or dominant reason for the harm, but merely a factor, in order to link the ground and the harm together.

At the second step of the analysis, we shift our focus from the general purpose of the standard to the particular standard itself, and inquire into the subjective belief of the employer adopting the specific standard. However, a logical connection between a specific standard and a general purpose will not automatically qualify it as a bona fide occupational requirement; the employer will need to demonstrate it has attempted to accommodate the employee up to the point of imposing an undue hardship, an essential component of the third step.

Undue Hardship and Reasonable Accommodation

The Supreme Court of Canada elaborated on the third step of this analysis in Hydro Québec v. Syndicat des employé e s de techniques professionnelles et de bureau d’Hydro Québec, section locale 2000 (SCFP FTQ) [2008] stating that;

The test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work.

A business may be required to make an individualized assessment of an employee and take meaningful good faith efforts to accommodate them in the field. This may be done by offering an employee a variable work schedule, modified work duties, lighten their duties or transfer to another department, to the point of undue hardship.

Accommodation need not be provided if it causes undue or excessive hardship, however, some degree of hardship is acceptable. For more information on reasonable accommodation, please visit the “Reasonable Accommodation” tab.