Perhaps the Tribunal should have had a look at
the Commission's own web site to learn what a BFOR is, before deciding that it doesn't have to have anything to do with the ability to
perform the job:
http://www.chrc-ccdp.ca/preventing_discrimination/page4-eng.aspx
Bona Fide Occupational Requirement
13. What is a bona fide occupational requirement?
14. What is the process for determining if a rule or a standard is a BFOR?
13. What is a bona fide occupational requirement?
A bona fide occupational requirement (or BFOR, for short) is a standard or rule that is integral to carrying out the functions of a specific position. For a standard to be considered a BFOR, an employer has to establish that any accommodation or changes to the standard would create an undue hardship.
For example, an airline pilot must have very good eyesight. This standard is integral to carrying out the duties of a pilot’s job.
When a standard is a BFOR, an employer is not expected to change it to accommodate an employee. However, to be as inclusive as possible, an employer should still explore whether some form of accommodation is possible anyhow.
14. What is the process for determining if a rule or standard is a BFOR?
The Supreme Court of Canada established a three-step process to determine if a specific accommodation is a BFOR because it creates an undue hardship4. The three-step process encourages the development of standards that are free from discriminatory barriers and that accommodate the potential contributions of all employees.
a) Step one: Establish a rational connection
Was the rule adopted for a purpose rationally connected to the performance of the job?
In the first step, the employer identifies the general purpose of the standard and determines whether it is rationally connected to the performance of the job. For example, in the case of the airline pilot, good eyesight is rationally connected to flying aircraft in all weather conditions.
However, if there is no rational relationship, the employer is expected to accommodate and the rule cannot be a BFOR. For example, the employer believes that good customer service requires that all its employees stand when greeting customers. While the rule of standing to greet customers may have been adopted in good faith and with no intention to discriminate, it has a discriminatory impact on those who use wheelchairs. Is the standard reasonably necessary? No. One might legitimately argue that good customer service does not solely rely on standing to greet customers.
b) Step two: Establish good faith
Did the employer adopt the rule in an honest and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose?
This step looks at the subjective element of the standard. The employer considers whether the standard was adopted with no intention of discriminating against an employee or group of employees.
The following considerations are helpful in determining whether the rule or standard was adopted in good faith:
Why was the standard developed?
When and by whom was the standard developed?
What process was used to develop the standard?
If the standard is not thought to be reasonably necessary or motivated by discriminatory considerations, then the standard must be changed, as it cannot be a BFOR.
c) Step three: Establish reasonable necessity
Is the rule reasonably necessary to the accomplishment of that legitimate work-related purpose?
In this step the employer examines whether the standard is reasonably necessary. The employer must carefully consider all reasonable options for accommodation, short of undue hardship. If the employer, after exploring all options for accommodation, finds that it cannot accommodate, then the rule can be considered a BFOR.
On the other hand, if the employer finds that it can accommodate the employee, then the employer must change the rule or standard to incorporate the accommodation.
Here are some questions to ask in considering whether the standard is reasonably necessary.
Were alternatives to the standard or rule considered?
If so, why weren’t they adopted?
Must all employees meet a single standard, or could different standards be adopted?
Does the standard treat some more harshly than others?
If so, was the standard designed to minimize this differential treatment?
What steps were taken to find accommodations?
Is there evidence of undue hardship if accommodations were provided?
4 British Columbia (Public Service Employee Relations Commission) v. BCGSEU (1999 35 C.H.R.R. D/257 (S.C.C.) also known by the name of Meiorin