EMPLOYERS
HAVE TO SET REASONABLE PERFORMANCE STANDARDS THAT ACCOMMODATE DISADVANTAGED GROUPS IF
POSSIBLE
In the recent B.C. v. BCGSEU case, the Supreme Court of Canada addressed
whether performance standards set higher than the job really requires violate human rights
legislation. The answer is artificially high standards can violate the rights of the
disadvantaged to be accommodated. The Court also changes the law on discrimination in an
important way.
FACTS:
The British Columbia government established
minimum physical fitness standards for its forest firefighters. The claimant, Tawney
Meiorin, a female firefighter who had in the past performed her work satisfactorily,
failed to meet the aerobic standard after four attempts and was dismissed.
No credible evidence showed that the
prescribed aerobic capacity was necessary for either men or women to perform the work of a
forest firefighter safely and efficiently.
The Court held that the standard was
discriminatory because it was not proven to be necessary to do the job and because women
had more difficulty passing it due to physiological differences.
LAW:
It is important to note that in coming to
its conclusions in this case the Supreme Court has set new discrimination guidelines. It
was the decision of the Court that it is time to do away with the distinction that many
jurisdictions make between direct and adverse effect discrimination. Direct discrimination
applies where a rule/practice is "discriminatory on its face". Adverse effect
discrimination happens when a practice/policy appears neutral but has a discriminatory
effect on an individual or group which is not intended.
In the past where direct discrimination has
been found by the courts, employers have been ordered to remove the discriminatory aspect
of the rule/standard. When adverse effect discrimination has been determined, the rule
stays in place but the employer is required to accommodate the individual or group, short
of undue hardship.
The court ruled that often the distinction
between the two types of discrimination is a matter of semantics. Justice McLachlin states
in the decision, writing for the Court, that: "It has been argued that the
distinction…may in practice serve to legitimize systemic discrimination. If a
standard is classified as being ‘neutral’ at the threshold stage of the inquiry,
its legitimacy is never questioned….The focus shifts to whether the individual
claimant can be accommodated…the conventional analysis thus shifts attention away
from the substantive norms underlying the standard, to how ‘different’
individuals can fit into the ‘mainstream’."
The Court’s ruling now makes it clear
it is unacceptable for employers who are found to have rules/test/practices that
discriminate to keep those processes in place just because they also accommodate affected
individuals. Employers will now have to address the standards that have been used, to
ensure that they are not discriminatory. "Employers must be aware of both the
differences between individuals, and differences that characterize groups of individuals.
They must build conceptions of equality into workplace standards."
The following is the analysis that the
Court decided should be used when making a determination if an employer has discriminated:
- That the employer adopted the standard for a purpose
rationally connected to the performance of the job. Is the standard intended to serve a
rational purpose?
- That the standard was adopted in an honest and good faith
belief that it was necessary to the fulfilment of the legitimate work related purpose.
Does the standard fulfil the purpose for which it is intended?
- That the standard is reasonably necessary to the
accomplishment of the legitimate work related purpose. To show that the standard is
reasonably necessary, it must be demonstrated that it is impossible to accommodate
individual employees sharing the characteristics of the claimant without imposing undue
hardship upon the employer.
DECISION:
The Court held there is no reason to
interfere with the arbitrator’s holding that the evidence fell well short of
establishing Ms. Meiorin posed a serious safety risk to herself, her colleagues, or the
general public.
The Government had also claimed that
accommodating the claimant would undermine the morale of the workforce. However, the Court
held that the attitudes of those who seek to maintain a discriminatory practice cannot be
determinative of whether the employer has accommodated the claimant to the point of undue
hardship. If it were possible to perform the tasks of a forest firefighter safely and
efficiently without meeting the aerobic standard, the rights of other forest firefighters
would not be affected by allowing the claimant to continue performing her job. The order
of the arbitrator reinstating the claimant to her former position and compensating her for
lost wages and benefits was restored.
The important implication is that where an
employer wishes to maintain a performance standard that discriminates against groups
protected by Human Rights legislation, the employer has to show that it would suffer undue
hardship from any lowering of the standard. The case is also important because it
establishes that discriminatory co-worker attitudes are not a grounds for refusing to
accommodate.
While this analysis addresses the processes
that the employer must go through, it should be noted that the same principles will apply
to unions. With regard to the issue of accommodation, unions, where they exist in the
workplace, have a role in determining how accommodation will occur.
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