O'Malley had worked for Sears for about seven years and had always worked on Fridays and Saturdays. She became a Seventh Day Adventist, which meant that she was not allowed to work from sundown on Friday to sunup on Sunday. When she first approached her employer he initially said that she would have to quit, because it was a job req
- How do you deal with adverse effect discrimination?
Appeal allowed with costs, awarded the difference between her part-time wage and the amount she would have earned working full-time.
The court recognizes that there is discrimination but that it cannot be dealt with in the same manner as direct discrimination (as in Ontario Human Rights Commission et al. v The Borough of Etobicoke) as the rule itself (making employees work weekends) is not discriminatory – it is neutral. However, it creates discriminatory effects inadvertently for the claimant. Therefore, they don't want to strike out the rule, they simply want to accommodate the individual within the rule. The court develops a two-step test that can be used to determine whether the adverse discrimination is really a bona fide occupational requirement and therefore permitted:
- is the rule/standard rationally connected to the necessities of the job?
- have they accommodated the individual to the point of undue hardship?
Similar to the direct discrimination test the onus is first on the claimant to prove a prima facie case of discrimination and then it switches to the respondent to pass the two-part test. All of the onuses are on a balance of probabilities.
Although the court does not provide an exhaustive list of what undue hardship includes, they state that some things (health, safety, costs) are always taken into consideration. Also, they say that accommodating to the point that someone gets to ignore a bona fide occupational requirement is obviously undue hardship. In this case Sears could pass the first part of the test, but not the second part as they could have given her a different schedule without weekend shifts.
- The O'Malley test should be used for determining if there is a bona fide occupational requirement in cases of adverse effect discrimination before the establishment of the Meiorin test.