May 10, 2023

When Can an Employer Discriminate?

We’ve written about human rights this winter as though they are untouchable, sacred grounds in your employment relationships. The truth is that they should often be seen as such – Canada has a strong legal framework both federally and provincially to protect employees’ human rights, as well as specifically-designed tribunals in place to uphold those laws.

While employers should never intentionally violate a worker’s human rights, there are going to be some situations where discrimination is unavoidable. Whether it’s a situation of competing human rights between employees, a genuine requirement of a job, or an employee refusing to cooperate with accommodations plans – there are indeed limits to human rights accommodations. 

So when can you legally discriminate against an employee? How far do you need to go to make an arrangement ‘work’? What happens when the employee refuses to be reasonable? What happens when you have a situation of competing human rights in the workplace? These are complicated questions, and the answers, much like any human rights policy, are never exactly one-size-fits-all. 

What is a BFOR?

In Canadian human rights law, there are exceptions, and the most common among them is known as a BFOR, or a bona fide occupational requirement (qualification in the United States). Essentially this means that a job requirement is allowed to contravene a protected human rights ground so long as it is a bona fide requirement of the job itself.

The legal test to determine whether a prima facie discriminatory standard (something that is discriminatory on its face) is a BFOR comes from a 1999 Supreme Court of Canada decision known as ‘Meiorin,’ or British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), which examined the necessity of a physical fitness test for forest firefighters. 

In their ruling, the Court laid out a three-part test for a BFOR. On a balance of probabilities, a discriminatory standard must have been:

-> adopted “for a purpose rationally connected to the performance of the job,”

-> “in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose;” and,

-> “reasonably necessary to the accomplishment of that legitimate work-related purpose.  To establish reasonable necessity, it must be shown that it would be s impossible to accommodate …without imposing undue hardship on the employer.”

The most common examples of a BFOR apply when it comes to disability. An employer can refuse to hire or employ an individual if they are physically unable to do a necessary part of the job that is intrinsic to their role, and any accommodation would place an unreasonable hardship on the business. An employee at a moving company applying for a job as a mover must be able to lift a certain amount of weight, otherwise, that specific role can simply not be tailored to meet their needs. 

It’s worth noting that the good faith requirement here is key, and thus this is seen far less with other grounds of discrimination. It would be highly unlikely to have a person’s marital status, sexual orientation, gender expression, or race present as a key and necessary component of their role, and one that cannot be accommodated. 

Also, the threshold of undue hardship is a high one to reach, and a business might need to undertake some degree of modification in order to accommodate. Some hardship is expected under the law. There are no exact numbers, but some costs or modifications to schedules or duties may be required. Yet, significant costs, such as installing an elevator, may be too significant for a business to bear, and an employer may be able to refuse to accommodate on such grounds.

The Duty to Accommodate is a Two-Way Street

When an employer is designing an accommodation plan for an employee, the duty is on the employer to make necessary modifications and propose workable solutions. Yet the employee, for their part, needs to be an active participant in the process and needs to be pragmatic when it comes to making accommodations work.

The legal standard here is one of reasonableness – the employer is responsible for providing reasonable accommodations, and not necessarily a perfect one. For instance, when accommodating an employee with a disability, the employer may propose accommodations that meet the employee’s medical needs but that still allows them to make the same contributions as the rest of their colleagues. 

This also frequently comes into play when an employer will need to modify schedules. For example, employees who are seeking modified schedules for family status reasons, or reasons of religious practice, may have certain periods during the day when they are unable to work. However, an employer can propose alternate working hours (should the business and the role allow) which give the employee the same number of hours on a modified schedule.

If the employee is being unreasonable, the employer may be at a crossroads. An employee who refuses all reasonable offers of accommodation may be impossible to accommodate, and if that is the case, the employer may be able to proceed not to hire, or to terminate their employment without cause. However, any employer going down this road should document carefully how reasonable efforts were proposed, and how the employee refused to accept any reasonable offers. 

What are Competing Human Rights?

What happens when a new employee requires a service animal, while another long-standing employee is severely allergic? What about employees who believe that same sex relationships and gender non-conformity violate their religious beliefs, but are then required to interact with queer, trans, and non-binary customers or employees? 

There is no hierarchy of human rights, and one employee does not lose their rights simply because they feel another’s rights have infringed their own. Any party making a claim should be treated with respect and dignity throughout the accommodation process. Employers may have a difficult time working out potential solutions, but again – solutions do not need to be perfect, but rather need to be reasonable, and that may take some maneuvering to make things as workable as possible.

Employers must remember that one’s human rights do not create a free license for hate speech and discrimination against any others. An employee may be entitled to their sincerely-held religious beliefs, for example, but when they choose to work in a business that welcomes all persons, they cannot rely on those beliefs to discriminate against or mistreat any other individuals. 

While competing human rights can be complicated, each scenario needs to be evaluated on a case-by-case basis. Taking a strategic approach, and thinking outside the box can help come up with unique solutions that may not perfectly meet the needs of all parties, but can help meet as many needs as possible. 

The Upshot

While much is asked of employers during the accommodation process, remember that the standard is generally one of reasonableness and that the threshold is that of undue hardship. An accommodation that would put a business into financial peril, or that would render a role effectively obsolete, may not require accommodation in those extreme cases.
When in doubt, it’s always best to consult a legal professional. With two decades of experience in HR law, we have helped countless employers implement workable accommodation plans and provided guidance on what happens when accommodations simply may not be workable. Contact us today to set up a consultation.