Understanding Bona Fide Occupational Requirements in Alberta

This covers discrimination when hiring and in the workplace: all employees are entitled to a safe, accommodating and legally compliant working environment. They are legally permitted restrictions of hiring and employing people based on their sex, religion or national origin.

In certain circumstances, limiting individual rights may be reasonable and justifiable, and certain requirements can be stipulated when hiring for particular roles.

In other words (and this may be surprising for some people), employees can sometimes be discriminated against based on sex, religion, or national origin if the employer can demonstrate what is known as a bona fide occupational requirement (BFOR).

Employers, however, should tread carefully here, as mistakes can lead to unintentional discrimination cases.

How can you identify a bona fide occupational requirement in Alberta

Bona fide occupational requirements are only permitted in Alberta (or anywhere in Canada) when the qualifications stated relate specifically to:

• A business’s necessary honest and good faith belief that the standard is necessary for operations, and
• The position’s essential job functions

It may be allowable if a discrimination complaint is made against an employer and the employer can show both of the stipulations above. The employer must be able to prove that it would be impossible to accommodate the employee without undue hardship (see below).

Employers should ask the following simple questions to determine whether their policy is discriminatory or not:

1. Does the policy or standard treat an employee differently?
2. Is the differential treatment based on a prohibited ground?

If the answer is “yes” to both questions, the policy is discriminatory and if challenged, the employer will need to provide evidence to the Human Rights Commission that it represents a bona fide occupational requirement by meeting the three requirements of BFOQs.

1.     Honest and good faith belief that the policy/standard is necessary

The Commission will consider the following:

• The circumstances of the adoption of the policy/standard
• When and why the policy/standard was created— and by whom?

2.     Rational connection to the performance of the job

The Commission will consider the following:

• The purpose of the policy/standard: safety, efficiency, etc.
• The objective requirements of the job
• Is there a rational connection between the policy/standard’s general purpose and the job’s objective requirements?

An employer may use evidence to prove a rational connection to job performance, including public statements/documents and internal documents providing information about the work and clearly identifying the duties involved.

3.     Reasonable Necessity

The Commission will consider the following:

• Was the standard/policy based on assumptions about a particular group?
• Does the standard/policy treat a particular group more harshly than another without apparent justification?
• Were alternate approaches considered before the standard/policy was adopted?
• Was the policy/standard designed to minimize the burden on those required to comply?
• Is there accommodation to the point of undue hardship?
• Is it necessary for all employees to meet the standard or comply with the policy for the employer to accomplish its legitimate purpose?
• Could the legitimate purpose be accomplished through a less discriminatory approach?

The Meiorin Test (“BFOR test”)

The Meiorin decision refers to a Supreme Court of Canada ruling in 1999, where in its decision, a new three-part test was outlined that could be used to determine if a BFOR claim is justified.

This test, briefly outlined in the three points covered above and sometimes referred to as the “BFOR test”, has been used by the Human Rights Commission to determine the merits of bona fide occupational requirement claims in discrimination complaints ever since.

The test is used on an individual or case-by-case basis and essentially requires employers to accommodate or consider the capabilities of different members of society before adopting a bona fide occupational requirement for a particular job.

Typical examples of successful BFOR claims

An employer may be successful in defending against a claim of discrimination using the Meiorin Test to prove a BFOR in the following types of cases:

• To perform a driving job safely, employed individuals must have reasonable vision and an appropriate driver’s licence.
• Without exception, liquor store employees must be at least 18 years of age to sell liquor in Alberta.

Failure to accommodate

In our multicultural society in Alberta, employers have a duty to accommodate differences, especially if these differences are protected under our Human Rights legislation.

But what constitutes a failure to accommodate, and how can an employer prove a defence of “undue hardship” when defending against a claim of discrimination?

What is the duty to accommodate?

An employer’s duty to accommodate is a principle that refers to the obligation of an employer to make a reasonable effort to accommodate an employee to the point of undue hardship.

If an employer fails in this duty, an employee can make a complaint to the Human Rights Commission.

The duty to accommodate is generally triggered when an employee expressly requests it. Employers would normally consider the request and either implement the necessary changes or refuse the request.

If the employer can show that making the changes would cause undue hardship, it may be a valid defence against a complaint before the Human Rights Commission.

Undue hardship

After an employer has made changes to accommodate an employee to the point of undue hardship, no further changes are required as it would impose an unnecessary level of hardship on the employer. 

There are three main assessments made when an employer claims undue hardship as a defence:

• Cost
• Interchangeability of work environment, if applicable
• Health and safety requirements, if applicable

If you have any questions about your legal rights as an employee, an employment lawyer from Taylor Janis LLP in Alberta can advise you during a confidential telephone or video consultation.

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