(6) Session 7 - Human Rights Law II
Introduction to Discrimination in Employment Law
Legal vs Illegal Discrimination
Not all discrimination is illegal.
Discrimination may be permissible if:
It is not based on a prohibited ground.
It is based on a prohibited ground, but the employer has a valid defense.
Common Defenses Against Claims of Discrimination
Bona Fide Occupational Requirement (BFOR)
Allows discrimination if the employer believes it is necessary for a legitimate business reason.
Frequently invoked concerning sex or race discrimination.
Requirements involve fitness or physical attributes.
Regulated under the Saskatchewan Human Rights Code, 2018, section 16(7) covering sex, age, and disability.
Once discrimination is proved by the employee, the burden shifts to the employer to prove a BFOR.
Meiorin Case and the BFOR Defense
Meiorin Case
Most noteworthy case regarding the BFOR defense.
Facts: Ms. Meiorin, a firefighter, failed a fitness test established by the BC government.
Required to run 2.5 km in 11 minutes.
Failed four times by being 49.4 seconds too slow.
Disparity: 35% of women meeting the standard versus 70% of men.
Laid off despite no past performance issues.
Ruling: SCC determined discrimination based on sex occurred as the fitness requirement was not justified as a BFOR.
Meiorin Test
Used to determine if the standard is a BFOR:
Is the employer-imposed standard connected to job performance?
Was the standard adopted in good faith belief about its necessity?
Is the standard necessary, with undue hardship if not met?
All answers must be âyesâ for it to qualify as a BFOR.
Duty to Accommodate
General Duty
Common context: Scheduling conflicts due to religious obligations or disabilities.
Applies to employers and unions; union consent may be required for certain accommodations.
Employers must accommodate to the point of undue hardship.
Employee must accept reasonable accommodations offered.
Refusal of reasonable accommodation discharges the employer's duty.
Determining Undue Hardship
Factors Influencing Undue Hardship
Costs to employer.
Impact on other employees.
Effect on employer operations.
Size of employer and health & safety implications.
Example of Undue Hardship: Hydro-Québec Case
Facts:
Employee had severe mental health challenges leading to significant absenteeism.
Employer previously provided accommodations but determined the employee could not return to work.
Union suggested major changes which were deemed by the SCC to require excessive adjustments by the employer.
Outcome: SCC ruled the employer had faced undue hardship.
Accommodation for Disabilities
Steps to assess accommodation include:
Modifications to the existing job or changing the job role.
The duty to accommodate disabilities is one of the most litigated issues in HR law.
Challenges:
Disabilities can vary significantly in presentation and may change over time.
Need for tailored, diverse accommodations, which may often be more costly than other accommodations.
Drug Testing Debate
Key Questions:
Should random drug testing be permitted universally or just in safety-sensitive roles?
Is there a distinction between drug and alcohol testing?
Must employees disclose previous addiction issues?
Legal Considerations:
Random drug testing typically does not assess current impairment, but alcohol tests do.
High legal thresholds are required for justifying mandatory drug testing in non-safety sensitive jobs.
Special Interest Organizations
Applicability:
Mainly includes faith-based organizations.
Religious adherence may serve as a BFOR; if justified, no accommodation is needed.
Additional Defenses to Discrimination
Age-related discrimination is outlined under Human Rights Codes (e.g., Section 16(5) in SK).
Defenses available for disadvantaged groups arenât applicable in SK.
Discrimination based on family/marital status is also considered, particularly in employment involving personal care workers.