Meiorin was a firefighter in British Columbia and was fired because she failed to pass a mandatory physical test administered by her employer (she could not complete the running test in the required time). She claimed that the test created adverse effect discrimination because it was more difficult for women to pass than it was for men. Further, she had received praise in her work before the test, and therefore thought that the test was not necessary to prove one’s ability to complete the job satisfactorily. She was successful in bringing a claim before the Labour Arbitration Board but the ruling was overturned at the British Columbia Court of Appeal.
- What test should be employed to determine if discrimination is a bona fide occupational requirement?
- Does it matter if it is adverse effect or direct discrimination?
- Should there be two tests?
Appeal allowed, Meiorin reinstated and the discriminatory standard removed.
as The Court of Appeal ignored the division between the two types of discrimination and said that so long as a standard is reasonably necessary for the performance of the work and it is done individually then it is alright. They held that the employer satisfied these requirements in this case.
The Supreme Court agreed that the two test system (McKay and O'Malley) allowed organizations to mask direct discrimination by changing the wording of rules. They recognize that the problems lie within the standards, and not the individuals who cannot comply with them – thus the rules should be repealed even if they only cause adverse effect discrimination. These minority groups that do not fit under the standards are just as important as the majority and must be accommodated as well. Human rights legislation is concerned with the effect on the individual and this is not properly respected using the two different tests – if a rule has adverse effects on an individual then it should be eliminated. With the new unified approach the court is trying to eliminate the different results for direct and adverse effect discrimination; they want to further accommodate individuals and to make the test for allowing discrimination more strict.
The court establishes a new three-part test for figuring out whether there is a bona fide occupational requirement:
- is the purpose of the standard rationally connected to the job?
- was the standard adopted in good faith?
- is the standard reasonably necessary to accomplish the purpose? (Here it must be proven that there has been accommodation to the point of undue hardship. It must be shown that there was no other way that the purpose could be achieved without discriminating.)
Note that the purpose identified in the first step must be the same one used in the third step. The first step does not create a very high threshold and showing that the standard was not adopted in bad faith will satisfy the second step. The onus of the test is on the respondent on a balance of probabilities. The onus only switches to the respondent after the claimant has shown a prima facie case of discrimination.
This case passes the first part of the test because the purpose (safety) is obviously rationally connected to the job (firefighter). It also passes the second step because the employer adopted the standard (requiring employees to pass the test) in good faith as they were trying to protect the lives of their employees. There is also evidence proving the good faith – coroner’s report, hiring people to help them create the test, etc. However, they cannot pass the third part of the test because the standard is not necessary for the purpose of safety because Meiorin performed the job well without passing it and therefore the test is not correlated to what is necessary for the job. The standard itself is discriminatory; it doesn’t matter that it is employed individually. hard working trequan