Bona Fide Occupational Requirements and Human Rights

The right to equal treatment without discrimination in employment is an important one. Consistent with this, the Ontario Human Rights Code (the "Code") broadly prohibits discrimination with respect to employment on the basis of race, religion, disability, sex, and a number of others protected ground.

In certain circumstances, however, it may not be possible or appropriate to treat everyone equally with respect to employment. In recognition of this, the Code has carved out a number of limited exceptions in which the right to equal treatment in employment does not apply. In this blog post, we explore some of these exceptions and their limits.

(a) Bona Fide Occupational Requirement

A prima facie discriminatory workplace requirement, standard or practice will not violate the Code if the employer can prove that it is a reasonable and bona fide (legitimate) occupational requirement ("BFOR").

In order to establish the BFOR defence, the employer must be able to prove on a balance of probabilities that:

• The requirement, standard, or practice was adopted for a purpose rationally connected to the performance of the job;
• The requirement, standard or practice, was adopted in good faith, in the belief that it is necessary to fulfill the legitimate work-related purpose; and
• The requirement, standard or practice is reasonably necessary to accomplish that legitimate work-related purpose, assessed objectively. This means it must be impossible to accommodate the employee without imposing undue hardship on the employer.

The BFOR defence has been interpreted restrictively. In order to determine whether a requirement, standard or practice is reasonably necessary, it is important to critically examine the nature of the employment, including the employees' actual duties, functions, activities and abilities. From there, consideration must be had as to whether it would result in undue hardship to accommodate the employees affected by the requirement.

Undue hardship is a high threshold and is to be assessed only with reference to cost, outside sources of funding (if any) and healthy and safety requirements. The employer will need to be able to provide evidence that the costs and/or health and safety risks are so substantial that accommodation is not feasible.

(b) Religious, Philanthropic, Educational, Fraternal or Social Institution or Organizations

Another exception may apply if the employer is an organization that primarily serves the interests of a certain group of people, such as a religious organization or a philanthropic institution. In that scenario, the organization may be able to give preference to or employ only those individuals who identify similarly to the group of people it serves.

For this exception to apply a number of criteria must be satisfied:

• The organization must be a religious, philanthropic, educational, fraternal or social institution or organization;
• The organization must be primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age or disability and give preference to or only employ persons who are similarly identified; and
• The qualification must be reasonable and bona fide qualification because of the nature of the employment.

Organization Type

Only religious, philanthropic, educational, fraternal or social institutions or organizations qualify for this exception.

Primarily Engaged in Serving the Interests of an Identifiable Group and Prefers Employees who are Similarly Identified

In order to fall within this exception, the employer must prove that it (a) primarily serves the interests of individuals who identify as part of one of the listed groups, and (b) prefers or only employs employees of that same group.

For example, in the case of Heinz v. Christian Horizons, 2008 HRTO 22 the employer was an Evangelical Christian organization that operated a community living residence for individuals with developmental disabilities. While the organization provided opportunities to those who identified as Evangelical Christian, its primary object was to support individuals with disabilities, not to serve individuals who adhered to Evangelical Christianity. As a result, it was not able to rely on this exception to justify the requirement that its employees not engage in homosexual relationships that it deemed contrary to the faith.

Reasonable and Bona Fide Occupational Requirement

If the first two elements are satisfied, the employer must then prove that the preference for similarly identified employees is a bona fide occupational requirement. Similar considerations apply to the BFOR analysis under this exception as set out above. Namely, the employer must show that it sincerely and honestly believes the qualification is necessary for the performance of the job and that it is fact reasonably necessary for the performance of the job when assessed objectively.

For example, in Heinz v. Christian Horizons it was held that the requirement that employees not engage in homosexual relationships was not a bona fide requirement, as the organization did not provide religious education or indoctrination.

(c) Medical or Personal Needs based Employment

The Code stipulates that the right to equal treatment will not be infringed where an individual person refuses to employ another on the basis of a Code protected ground and the primary employment duty is attending to the medical or personal needs of that person, or of an ill, infirmed, or aged relative.

(d) Family Members

It will also not violate the Code right to equal treatment for an employer to grant or withhold employment or advancement to a person who is the spouse, child or parent of the employer or another employee.

(e)Retirement of Court Officers

The Code also includes exceptions for mandatory retirement provisions that apply to certain court officers, including judges, associate judges, and justices of the peace.

Takeaways:

The exceptions to the right to equal treatment without discrimination in employment are limited. Employers are encouraged to proactively consider whether their workplace requirements, standards or practices may result in discriminatory treatment, and if so, whether the requirement can be modified to remove the discriminatory effect or accommodation provided. If neither is feasible, employers may be able to justify the requirement but only if it is a reasonable and bona fide occupational requirement or falls within another, limited exception,

Employers and employees alike should seek legal advice when dealing with human rights issues in the workplace. Lee Workplace Law would be happy to answer any questions you may have.