Chapter 23: The Bona Fide Occupational Requirement, the Duty to Accommodate, and Other Discrimination Defences

Introduction to Human Rights Legislation in Employment

  • Focus on Chapter 23 of David Doria's series covering:
    • Bona fide occupational requirement (BFOR)
    • Duty to accommodate
    • Other discrimination defenses

Two-Step Model for Analyzing Human Rights Cases

  • Step 1: Does the employer's rule, standard, or practice discriminate against the complainant on a prohibited ground?

    • If NO, legislation does not apply, case dismissed.
    • If YES, proceed to Step 2.

  • Step 2: Is there a defense available to the employer?

    • Discrimination may be permissible under certain public policy reasons.

Bona Fide Occupational Requirement (BFOR) Defense

  • Defense indicating that some discrimination can be justified under:

    • Good faith belief that discrimination is necessary for legitimate business objectives.
    • Unable to accommodate the employee without causing undue hardship.

  • Key Concept: Right not to be discriminated against is not absolute; must balance employer efficiency against employee rights.

  • BFOR Test Components (from Mayoran decision):

    1. Rational Connection: Standard must be rationally connected to job performance.
    2. Good Faith Belief: Employer must have a sincere belief that the standard is necessary.
    3. Undue Hardship: Must show that accommodating the employee would cause significant hardship.

Mayoran Decision Case Study

  • Facts: Maioran, a female firefighter, terminated for failing a 2.5 km run in 11 minutes.
  • Claim: Test indirectly discriminates against women (lower passing rates).
    • Outcome: The court agreed; it found indirect discrimination based on gender.
  • Employer Defense: Argued the running standard was a BFOR.
    • Failed the test on the necessity of running under 11 minutes.

Duty to Accommodate

  • Definition: Requirement for employers to modify work situations to enable employees to work unless it causes undue hardship.

  • Introduced in 1985 (O'Malley case):

    • Court ruled intention does not matter; the effect of discrimination is crucial.
    • Duty continues until undue hardship is encountered.

  • Central Okanagan School District versus Renault (Further elaboration on Duty to Accommodate):

    • Employees must engage in accommodation processes and accept reasonable options presented by employers.

Factors for Assessing Undue Hardship

  1. Cost: Must be significant enough to threaten viability of the enterprise.
  2. Safety Risks: Must demonstrate intolerable risks to safety.
  3. Interchangeability of Employees: Larger employers may have more flexibility in accommodations.

Procedural and Substantive Duty

  • Procedural Duty: Employers must investigate and gather facts about accommodation needs.
  • Substantive Duty: Actual modifications to work roles or environments as long as they do not exceed undue hardship.

Examples of Accommodation in Practice

  • Case of Salazar vs. JSL Investments:
    • Employee with depression requested reduced hours; employer failed to accommodate by not exploring options.

Scenarios Illustrating BFOR and Duty to Accommodate

  • Several scenarios detailed in Table 23.1 illustrate application and outcomes of BFOR and accommodation practices in various contexts.

Other Discrimination Defenses

  • Special Interest Organization Defense: Applies to organizations serving distinct communities (e.g. religious schools).
  • Nepotism Defense: Permits family preference in hiring under certain circumstances.
  • Personal Care Attendant Exemption: Certain caregiver roles are exempt from human rights legislation.
  • Age-related Exemption: Age discrimination allowed in specific pension and insurance contexts.
  • Affirmative Action Programs: Allow targeted hiring for disadvantaged communities.

Conclusion

  • Employers need to fit into a defense to avoid human rights violations; failure to accommodate or justify discrimination can lead to substantial penalties.