Bona Fide Occupational Requirements (BFOR)

Section 13(4) of the Human Rights Code states that the prohibitions on discrimination in connection with employment that are set out in section 13(1) and 13(2) of the HRC “do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.”   A “bona fide occupational requirement” is commonly referred to as a “BFOR”.

In the leading case of British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3 (commonly referred to as “Meiorin”), the employer had adopted a new series of physical fitness tests for forest firefighters.

The claimant was a female firefighter who had in the past performed her work satisfactorily. She passed three of the new fitness tests, but failed a fourth one, a 2.5 km run designed to assess whether she met the Government of B.C.’s aerobic standards, by taking 49.4 seconds longer than required.  As a result, she was dismissed.

The standard had a negative effect based on sex (gender) because of physical differences between men and women. The standard was discriminatory unless the employer could prove a “bona fide and reasonable justification” (BFOR). The Supreme Court of Canada set out the test for proving a BFOR:

(1)    The employer adopted the standard for a purpose rationally connected to the performance of the job;
(2)    The employer adopted the standard in an honest and good faith belief that it was necessary to fulfil a legitimate work-related purpose; and
(3)    The standard is reasonably necessary to fulfill its purpose. The employer must show that it could not accommodate individual employees with the protected characteristic without experiencing “undue hardship.”

In that case, the employer was able to establish the first two parts of the test:

• It had chosen the fitness standard to find employees who can do the job safely and well, and there was a logical connection between fitness and a firefighter’s job;
• It acted honestly when it chose the standard. It believed the standard was needed to find employees who could do the job safely and well. It did not mean to discriminate based on sex.

However, the employer failed to establish the third part of the test, that the standard was reasonably needed to meet its goal. It failed to establish that it would face undue hardship if it had used a different standard.

In Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ), [2008] 2 S.C.R. 561,  the Supreme Court of Canada elaborated on the criteria to be met for an employer to establish “undue hardship”.  In that case, the employee had a number of physical and mental problems, and over approximately 8 years, had missed 960 days of work. Over the years, the employer had adjusted her working conditions in light of her limitations. After having been off work for about five months, and while off work indefinitely, she was fired.

The Supreme Court of Canada stated that “What is really required is not proof that it is impossible to integrate an employee who does not meet a standard, but proof of undue hardship, which can take as many forms as there are circumstances…”     “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.”

The test for undue hardship is not total unfitness for work in the foreseeable future.  If the characteristics of the employee are such that the proper operation of the business is hampered excessively or if an employee with remains unable to work for the reasonably foreseeable future, even though the employer has tried to accommodate him or her, the employer will have satisfied the test. The employer’s duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.

In Hydro-Québec v. Syndicat, the Supreme Court of Canada also stated that when assessing whether the duty to accommodate has been met, it is necessary to make a global assessment that considers the whole situation, which in that case included the entire time the employee was absent in the past.