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Publications Occupational Requirements and JustificationsBona Fide Occupational Requirements and Bona Fide Justifications under the Canadian Human Rights Act The Implications of Meiorin and Grismer Table of contents Overview of the Supreme Court of Canada
B. The Grismer case: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) Implications for the Investigation of Complaints Please contact one of the Commission’s regional offices in Halifax, Montréal, Toronto, Winnipeg, Edmonton or Vancouver or contact the national office in Ottawa. Canadian Human Rights Commission Since the Canadian Human Rights Act was first passed in 1978, the law with respect to the defences of bona fide occupational requirement (BFOR) and bona fide justification (BFJ) has undergone several changes. Recently, the Supreme Court of Canada decided two important cases,(1) which have major implications for employers and service providers when relying on a BFOR or BFJ defence. The decisions reinforce the duty to accommodate individuals who cannot meet an employment or service-delivery standard for such reasons as disability, sex, family status, or religion. They also clarify the nature of the evidence that is required in cases where a bona fide occupational requirement or bona fide justification is raised in defence of a complaint of discrimination. As the Court stated in the first of these decisions:
The Court expanded on this point in its second decision:
In light of these two decisions, the Canadian Human Rights Commission has modified its approach to the investigation of complaints which involve allegedly discriminatory standards. This document provides an overview of the decisions, and the consequent changes to the Commission' P < process. investigation s> In the past, Courts and Tribunals held that the first step in considering an allegation of discrimination related to a standard or policy was to identify whether the discrimination was direct or indirect (adverse effect). The BFOR/BFJ defences were traditionally applied only to direct discrimination. The two categories of discrimination were analysed as follows:
Where a complainant established that an employment standard or policy was prima facie direct discrimination, the onus shifted to the employer to show that the challenged standard or policy was based on a bona fide occupational requirement. To do so the employer had to prove: Indirect or Adverse Effect Discrimination These terms describe standards or policies that are neutral on their face, i.e., that are applied equally to all people without distinction on a prohibited ground, but which nonetheless have an adverse effect based on a prohibited ground. For example, a job description which requires applicants to have a driver's licence is neutral on its face as it does not specifically exclude anyone. It is not neutral in its effect, however: people who cannot get a driver's licence because of vision impairments or epilepsy, for example, would be precluded from applying for the job. Where the complainant established that an apparently neutral standard or policy had a prima facie adverse effect on a group based on a prohibited ground, the burden of proof then shifted to the employer, who, in order to avoid liability, was required to prove two things: In the federal jurisdiction, the distinction between direct and adverse effect discrimination was narrowed when Parliament passed amendments to the Canadian Human Rights Act in June 1998. With these amendments, Parliament made it clear that employers and service providers have a duty to accommodate individuals who are discriminated against by any policy or practice. Section 15 of the Canadian Human Rights Act now states that:
Overview of the Supreme Court of Canada Decisions in Meiorin and Grismer A. The Meiorin case: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) This case dealt with a grievance by a female forest firefighter, Tawney Meiorin, who had been dismissed from her job because she failed one aspect of a minimum fitness standard established by the Government of British Columbia for all firefighters. After Ms Meiorin had been performing the duties of a firefighter for three years, the respondent adopted a new series of fitness tests, including a running test designed to measure aerobic fitness. After failing the test and losing her job, Ms Meiorin complained that the aerobic standard discriminated against women in contravention of the British Columbia Human Rights Code, as women generally have lower aerobic capacity. The Government of British Columbia argued that this standard was a bona fide occupational requirement of the firefighter position. On appeal, the Supreme Court determined that the standard was not a BFOR. In reaching this conclusion the Court considered the traditional approach of first determining whether the discrimination was direct or adverse effect. It found this approach inappropriate for the following reasons.
The Court therefore rejected the conventional approach, and proposed a unified test for BFOR defences in cases of direct or adverse effect discrimination. This unified test asks the following questions:
B. The Grismer case: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) Some three months after the Meiorin decision, the Court gave its decision in Grismer, a case in which the respondent raised a bona fide justification defence. Terry Grismer, who passed away before his case was heard by the Court, had a condition known as homonymous hemianopia (HH), which eliminated his left-side peripheral vision in both eyes. The British Columbia Superintendent of Motor Vehicles cancelled his driver's licence on the ground that his vision no longer met the standard of a minimum field of vision of 120 degrees. Certain exceptions to the 120 degree standard were allowed, but people with HH were never permitted to drive. Mr Grismer re-applied several times, passing all of the requisite tests except the field of vision test, and was not permitted to demonstrate that he was able to compensate for his limited field of vision. He therefore filed a complaint with the British Columbia Council of Human Rights and was successful at Tribunal on the basis that the Superintendent had failed to prove that there was a BFJ for the rigid standard applied to people with HH. On appeal, the Supreme Court of Canada made it clear that the approach set out in Meiorin is equally applicable in service provision cases. It applied the same approach to this complaint, which had been filed many years before the Meiorin test was enunciated. It concluded that the 120 degree vision standard was not reasonably necessary, and the standard was struck down. In adapting the Meiorin test to the BFJ defence in Grismer, the Court asked the following questions:
Implications for the Investigation of Complaints As a result of these two decisions, the Commission has modified its approach to the investigation of complaints related to employment or service-delivery standards. In future investigations, all allegedly discriminatory standards and policies will have to be justified as rationally connected to the work or service, made in good faith, and reasonably necessary. The investigation will consider whether the standard has the effect of excluding members of a particular group on impressionistic assumptions, or treating one or more groups more harshly than others without apparent justification. This approach will apply to all complaints whether or not alleged discrimination took place or after the Meiorin and Grismer decisions. In the investigation of any complaint of discrimination, the onus of proving a BFOR or BFJ lies with the respondent and not with the complainant. The onus is therefore on the respondent to provide evidence of each of the elements of the test set out by the Court. Specifically, evidence will need to be presented to address the following issues:
The Meiorin and Grismer decisions have significantly changed the way we look at bona fide occupational requirements in employment and bona fide justifications in the provision of services. It is hoped that this summary of the decisions will help employers and service providers to develop and put in place non-discriminatory standards and practices. Additional information can be obtained by contacting the national office or regional office of the Commission or by sending an E-mail at the following address: INFOCOM@chrc-ccdp.ca. Also the document is available in the PDF format, to view this last document you will need the Acrobat Reader Software which is available for free on the Adobe Web Site. 1. British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.),[1999] 3 S.C.R. 3, referred to as the Meiorin case and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, referred to as the Grismer case |