If the answer to both questions is yes, then prima facie evidence of discrimination has been proven. It is the employer`s responsibility to provide evidence that the standard or policy is a true occupational requirement. For a bona fide occupational requirement to be recognized as valid, the employer must demonstrate that the requirement has the three characteristics described in the Meiorin test. When assessing a human rights complaint, the Commission generally considers the following criteria for each characteristic. One of the main tasks of an employer is to provide a safe, accommodating and legal work environment for all employees, including the groups most in need of protection. One way to stick to this is that employers need to make sure they don`t inadvertently discriminate against their candidates and employees. In Part 2 of Sterling Talent Solutions` HR Employment Laws series, “What is a Bona Fide Occupational Requirement?” Mark Sward, Director of Privacy at Sterling Talent Solutions, explains what a real job requirement is, how it differs from exceptions for historical protection, and how the requirements can be documented. The test requires employers to take into account or take into account the skills of different members of society before accepting an actual occupational requirement. This does not mean that employers cannot set standards, but it does mean that standards must reflect the requirements of the position. (3) Determine whether the respondent employer relied in good faith on national law or whether the state defence of intellectual property rights constitutes a pretext for discrimination. For example, determining whether the defendant has given written instructions regarding state law and whether he has a possibility that also excludes women in a state without the relevant protection law. Also check whether the law in question contains a waiver clause that allows an employer to apply to the competent state authority for a waiver of the requirements of the law and, if so, whether the defendant employer has requested such a waiver. A BFOR is a standard or rule that is an integral part of meeting the requirements of a particular position in a workplace.
For a standard to be a BFOR, the employer must demonstrate that any adaptation or modification of that standard or rule would cause unreasonable difficulties. (9) Interview persons who hold or have held “contact positions” in prison to determine the requirements of the workplace and the impact of violence, if any, on the worker`s ability to successfully maintain safety and control. Unless a workplace standard or rule is a BFOR, the employer must accommodate employees to the point of unreasonable hardship. To determine whether a workplace standard or rule is a BFOR, employers must pass the three-step test as set out in Meiorin. The three-step test indicates that the standard or rule: While there is a similarity between the “commercial necessity” test created by the court and the analysis of the BFOQ legal exception as applied in these privacy cases, the two should not be confused. If it is possible for an employer to safeguard the alleged data protection interests of its customers or customers without openly discriminating against Title VII, the employer cannot invoke the BFOQ exception. The Commission`s subsequent court decisions and proceedings apply this analysis to the employer`s right to “contact” positions in an institutional environment. The content of this document does not have the force and effect of the law and is not intended to bind the public in any way. This document is intended solely to provide the public with clarification of existing requirements under the law or the authority`s guidelines.
The Canadian Bona Fide Occupational Requirements Act was considered in a Canadian court case in 1985 involving an employee of the Canadian National Railways, K.S. Bhinder, a Sikh whose religion required him to wear a turban, lost his challenge to CN`s policy of wearing a hard hat. [1] In 1990, the Supreme Court of Canada amended the Bhinder decision by ruling on another case: “An employer who has not adopted an accommodation policy and who cannot otherwise satisfy Trier that the individual placement would result in unreasonable hardship must justify its conduct towards the individual complainant. Even in this case, the employer can count on the BFOQ defence. [2] The Supreme Court of Canada has developed a three-step test to determine whether a workplace standard or rule is a workplace standard or rule.2 This three-step test promotes the development of workplace standards that: The test is applied individually or on a case-by-case basis. An employer who meets the meiorin test in one case may not necessarily be able to rely on the same information in similar situations. Review: February 5, 2010 In 1999, the Supreme Court`s Meiorin decision provided a uniform test that applied uniformly to all of BFOR`s defences, whether direct or indirect. According to the Canadian Human Rights Commission, “this amendment has simplified the analysis required in cases of discrimination and has ensured that, in all cases where a BFOR/BFJ is used, the employer or service provider must accommodate individuals to the point of unreasonable hardship.” Based on the results of the Meiorin case, the Supreme Court developed a three-part test to determine whether an apparently discriminatory standard, policy or practice is a genuine requirement of employment: an employer can assert a bona fide employment requirement when a complaint of discrimination is filed against it. The onus is on the employer to prove that it would be impossible to accommodate the employee without unreasonable hardship. You can learn more about unreasonable difficulties. In 1999, the Supreme Court of Canada issued Meiorin (British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees` Union (B.C.G.S.E.U.) (1999) 35 C.H.R.R. D/257 (S.C.C.), which instructs employers on whether a particular occupational requirement is reasonable and justified and, therefore, a bona fide occupational requirement.
In its decision, the Supreme Court introduced a new three-part test. The Meiorin test is an analysis to determine whether an occupational requirement is justified. Once the complainant has demonstrated that the standard or requirement is prima facie discriminatory, the employer must prove the standard after weighing the probabilities: The Ontario Human Rights Commission (OHRC) has issued guidelines for setting workplace requirements. Employers need to understand whether the rule or standard adopted is rationally related to the job for which they are hiring.
