NEW TEST FOR REASONABLE ACCOMMODATION
British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U. (1999), 35 C.H.R.R. D/257 (S.C.C.)
The Supreme Court of Canada holds that the Government of British Columbia’s aerobic standard used to test the fitness of forest firefighters discriminates on the basis of sex, and further that the Government failed to show that the discriminatory standard is justified as a bona fide occupational requirement (“BFOR”).
This case arose as a grievance before a labour arbitrator. Tawney Meiorin was employed for three years as a member of the Initial Attack Forest Firefighting crew. Although she did her work well, she lost her job when the Government adopted a new series of fitness tests for forest firefighters. She passed three of the tests but failed a fourth one, a 2.5 km run designed to assess whether she met the Government’s aerobic standards, by taking 49.4 seconds longer than required.
The arbitrator found that the aerobic standard constituted adverse effect discrimination based on sex because men as a group have a higher aerobic capacity than women, and consequently are more able to meet the standard. The average man, with training, could meet the standard. The average woman, with training, could not meet the standard. Consequently, the same standard applied to both sexes excluded more women than men.
The arbitrator also concluded that the Government did not show that it had accommodated Ms. Meiorin to the point of undue hardship. The arbitrator ordered that Ms. Meiorin be reinstated and compensated for lost wages and benefits. This arbitral ruling was overturned by the British Columbia Court of Appeal.
In the view of the Supreme Court of Canada the narrow issue is whether the Government improperly dismissed Ms. Meiorin from her job as a forest firefighter. The broader issue is whether the aerobic standard unfairly excludes women from forest firefighting jobs.
The aerobic standard was developed for the Government by University of Victoria researchers. The Court finds that two aspects of the researchers’ methodology are problematic in this case. First, it was primarily descriptive, based on measuring average performance levels, and converting this data into minimum performance standards. Therefore, it did not demonstrate that these performance standards were in fact necessary to the safe and efficient performance of the job. Second, it did not seem to distinguish between male and female test subjects. The record did not show whether women and men require the same minimum level of aerobic capacity to perform this job safely and efficiently.
The Court holds that the Court of Appeal mistakenly read the arbitrator’s reasons as finding that the aerobic standard was necessary to the safe and efficient performance of work. The arbitrator found, on the contrary, that despite her failure to meet the standard Ms. Meiorin did not pose a serious safety risk to herself, her colleagues, or the general public. The arbitrator did not find that meeting the aerobic standard was necessary to safe and efficient job performance.
The Court agrees with the arbitrator that on the conventional legal approach to applying human rights legislation a case of adverse effect discrimination was made out and the Government failed to show that it had accommodated to the point of undue hardship.
However, the Court decides that the conventional analysis should be revisited. The conventional analysis has distinguished between direct discrimination and adverse effect discrimination, defining direct discrimination as that which is open or overt, discriminatory on its face, and adverse effect discrimination as that which results from the discriminatory effects of seemingly neutral practices. The defence to direct discrimination has been to show that the rule is a bona fide occupational requirement. Absent such a showing, the rule would be struck down. The defence to adverse effect discrimination has been to show that a complainant could not be accommodated without undue hardship. This bifurcated approach has caused some confusion on the part of tribunals and courts, and the Supreme Court of Canada takes this occasion to articulate a new “unified” approach which avoids the distinction between direct and adverse effect discrimination.
Under the unified approach there is a three-step test for determining whether a discriminatory standard is a BFOR. The employer must establish:
- the standard was adopted for a purpose that is rationally connected to job performance;
- the particular standard was adopted in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose;
- the standard is reasonably necessary to the accomplishment of that legitimate purpose. This includes a requirement to demonstrate that it is impossible to accommodate without undue hardship.
Applying the unified approach to this case, the Court holds that Ms. Meiorin discharged the burden of establishing that, prima facie, the standard discriminates against women, and the Government has not shown that the standard is reasonably necessary. The Government did not show that it would experience undue hardship if a different standard were used.
The Court disagrees with the Court of Appeal that accommodating women by permitting them to meet a different aerobic standard necessarily discriminates against men. The Court also finds that individual testing, without more, does not negate discrimination.
The appeal is allowed, and the order of the arbitrator is restored, with costs to the appellant in this Court and the Court below.