Bona fide occupational requirements
The law recognizes that, in certain circumstances, a limitation on individual rights may be reasonable and justifiable. Discrimination or exclusion may be allowed if an employer can show that a discriminatory standard, policy or rule is a necessary requirement of a job, that is, if it is a bona fide occupational requirement. For example:
- In order to perform their jobs safely, persons employed as drivers require acceptable vision and an appropriate driver's licence.
- Liquor store employees must be at least 18 years of age to sell liquor. There is no exception to this age requirement under Alberta legislation, thus creating a bona fide occupational requirement.
An employer can claim a bona fide occupational requirement if a complaint of discrimination is made against them. The onus is on the employer to show that it would be impossible to accommodate the employee without undue hardship. You can read more about the duty to accommodate and undue hardship.
In 1999, the Supreme Court of Canada released the Meiorin decision (British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) (1999) 35 C.H.R.R. D/257 (S.C.C.)), which provides direction to employers as to whether a particular occupational requirement is reasonable and justifiable. In its decision, the Supreme Court outlined a new three-part test. The Meiorin test sets out an analysis for determining if an occupational requirement is justified and therefore a bona fide occupational requirement. Once the complainant has shown the standard or requirement is prima facie (at first view) discriminatory, the employer must prove, on a balance of probabilities, the standard:
- was adopted for a purpose that is rationally connected to job performance
- was adopted in an honest and good faith belief that the standard is necessary for the fulfillment of that legitimate purpose
- is reasonably necessary to accomplish that legitimate purpose-This requires the employer to demonstrate that it is impossible to accommodate the employee without the employer suffering undue hardship.
The test requires employers to accommodate or consider the capabilities of different members of society before adopting a bona fide occupational requirement. This does not mean that employers cannot set standards, but it does mean that the standards should reflect the requirements of the job.
Evaluation of a bona fide occupational requirement
To determine whether a policy or standard is discriminatory, an employer should ask:
- Does the policy or standard treat an employee in a differential manner?
- Is the differential treatment based on a prohibited ground?
If the answer to both questions is yes, then a prima facie case of discrimination is established. It is the responsibility of the employer to provide evidence that the standard or policy is a bona fide occupational requirement.
In order for a defence of a bona fide occupational requirement to be accepted as valid, the employer must prove that the requirement has all three characteristics described in the Meiorin test. In assessing a human rights complaint, the Commission will normally consider the following criteria for each characteristic.
- Rational connection to the performance of the job
- What is the purpose of the policy or standard-safety, efficiency, other? Evidence may include public statements or documents and internal documents that provide information about the work.
- What are the objective requirements of the job? Evidence may involve identifying the jobs to which the policy or standard applies and identifying the duties involved in these jobs.
- Is there a rational connection between the general purpose of the policy or standard and the objective requirements of the job?
- Honest and good faith belief that the standard is necessary
- What are the circumstances surrounding the adoption of the policy or standard?
- When was the policy or standard created, by whom, and why?
- What other considerations were included in the development of the policy or standard?
- Was the standard or policy based on assumptions about a particular group?
- Is there evidence that the standard or policy treats a particular group more harshly than another without apparent justification?
- Were alternate approaches considered before the standard or policy was adopted?
- Is there any evidence the policy or standard was designed to minimize the burden on those required to comply?
- Is there accommodation to the point of undue hardship?
- Is it necessary for all employees to meet the standard or comply with the policy for the employer to accomplish its legitimate purpose?
- Is there any evidence that the legitimate purpose could be accomplished through a less discriminatory approach?
The test is applied on an individual or case-by-case basis. An employer who meets the Meiorin test in one instance may not necessarily be able to rely on the same information in similar future situations.
Reviewed: December 16, 2009
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