Workshop on Duty to Accommodate Policy
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IV. Bona Fide Occupational Requirement (BFOR)
The law recognizes that, in certain situations, a limitation on individual rights may be reasonable and justifiable. Discrimination or exclusion may be allowed if an employer can show that a discriminatory requirement of a job is essential for performing that job. For example, to perform the job of driving a truck safely, persons employed as drivers must meet vision standards and have an appropriate driver 's license. A legally blind person would be legitimately excluded from a position as a truck driver since he/she cannot meet these two bona fide occupational requirements. The onus is on the employer to prove a BFOR if the complainant shows a prima facie case of discrimination.
Bona fide occupational requirements, according to the Supreme Court of Canada, are those requirements that:
- the employer has adopted for a purpose or goal that is rationally connected to the functions of the position;
- the employer has adopted in good faith, in the belief that they are necessary to fulfill the purpose or goal; and
- are reasonably necessary to accomplish the purpose or goal in the sense that the employer cannot accommodate persons with the characteristics of a particular group without incurring undue hardship.
The above ruling emerged from the landmark Meiorin v. The Government of British Columbia case, and is now the test for determining which occupational requirements are reasonable and justifiable. The test requires that employers take into account the capabilities of different members of society before adopting a bona fide occupational requirement or qualification, and before adopting standards and tests to evaluate a person against this BFOR. This does not mean that the employer cannot set standards, but it does mean that the standards must only reflect the true requirements of the job.
In Grismer v. B. C. (Superintendent of Motor Vehicles) the court extended the Meiorin ruling to those providing services to clients, and ensures that each person is assessed according to his or her own personal abilities rather than presumed group characteristics. Green v. TBS, PSC and HRDC applied the Grismer precedent and found that the PSC had not met their "duty to accommodate" Green's dyslexia in the language diagnostic testing process.
For details on these cases, see internet web site: CHRC, "Publications" www.chrc-ccdp.ca/publications/employment_equity-en.asp
Appendix A Guideline: "If provision for accommodation has not been incorporated into the policy or standard then the policy or standard is not a bona fide occupational requirement."
a) Evaluation of a bona fide occupational requirement
To meet the three-step test to prove a BFOR, employers should expect a court or tribunal to ask for solid answers to questions such as:
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?
- Is there a way to do the job that is less discriminatory while still accomplishing the employer's legitimate purpose?
Honest and good faith belief that the requirement or standard is necessary
- What are the issues and circumstances that led to the adoption of the policy or standard?
- When was the policy or standard created, by whom, and why?
- 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?
- Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?
- If alternative standards were investigated and found to be capable of fulfilling the employer's purpose, why were they not implemented?
- Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established?
- Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
- Is there any evidence that the legitimate purpose could be accomplished through a less discriminatory approach?
- Is there accommodation to the point of undue hardship?
- Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles?
V. Failure To Accommodate
What are the potential consequences of failing to accommodate?
If the employer or service provider fails to provide accommodation to the point of undue hardship, then the employer or service provider may be in contravention of the Canadian Human Rights Act, and the person seeking accommodation may file a complaint with the Canadian Human Rights Commission.
If, on the other hand, the person seeking accommodation refuses a reasonable and appropriate accommodation, the employer or service provider has likely met their legal burden.
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