November 13th, 2017 | Sterling

What is Bona Fide Occupational Requirement?

One of the key responsibilities of an employer is to provide a safe, accommodating and legally compliant working environment for all employees, including those groups who most need protection. One way to comply is that employers need to make sure they do not unintentionally discriminate against their applicants and employees. In Part 2 of Sterling Talent Solutions’ Employment Laws in HR series, “What is a Bona Fide Occupational Requirement?” Mark Sward, Director of Privacy at Sterling Talent Solutions, discusses what a bona fide occupational requirement is, how it differs from exceptions for criminal history protections and how the requirements can be documented.

What Constitutes a Bona Fide Occupational Requirement Under Human Rights Laws?

Canadian human rights laws help promote equality in the workplace and are an integral part of Canadian society. But, there is a time when a discriminatory employment rule is valid, this exception is called bona fide occupational requirement (BFOR), meaning a requirement that is necessary for the  performance of a job. BFOR’s are not preferences. They must be essential to the performance of the task and their absence must be impossible for the employer to accommodate without undue hardship. Different human rights laws set out BFOR exceptions in different ways, but the Supreme Court has set out a single test for determining whether a discriminatory standard is a BFOR.

In 1999, the Meiorin decision by the Supreme Court provided a unified test to be applied consistently to all BFOR defences, regardless of whether the discrimination was direct or indirect. According to the Canadian Human Rights Commission, “This change simplified the analysis required in discrimination cases and ensured that, in all cases where a BFOR/BFJ is claimed, the employer or service provider must accommodate individuals to the point of undue hardship.” Based on the findings of the Meiorin case, The Supreme Court developed a three-part test to ask if a seemingly discriminatory standard, policy or practice is a bona fide occupational requirement:

• Did the employer adopt the standard, policy or practice for a purpose rationally connected to the performance of the job?
• Did the employer adopt the standard, policy or practice in good faith that it was necessary to the fulfillment of the job purpose?
• Is the standard, policy or practice reasonably necessary to the accomplishment of that work-related purpose?

 

To qualify as a BFOR, any deviation from a standard, practice or policy must result in undue hardship to the employer. However, there is no uniform standard for what constitutes undue hardship. This status can only be reached when the employer has done everything reasonably possible to accommodate.

Difference Between Bona Fide Occupational Requirements and Exceptions for Criminal History Protections

Where criminal convictions are protected by human rights laws (in British Columbia, Quebec, Prince Edward Island, Newfoundland and Yukon Territory), they are assessed differently from other protected characteristics. Criminal convictions can be considered where they are related to the position. A criminal conviction is not subject to accommodation; it either presents an acceptable risk or not. Employers must decide whether to hire those with a criminal conviction on a case-by-case basis. During this type of assessment, an employer must decide if the applicant’s past criminal charges pose any threats to the business’s ability to run their business safely and efficiently. To do so, employers should consider the following:

• How much time has elapsed between the charge and the employment decision?
• What has that individual done during that elapsed period?
• Have they shown any tendencies to repeat that kind of behaviour for which they were charged?
• Has the individual shown a firm intention to rehabilitate themselves?
• Has a pardon or record suspension been secured or a conditional discharge received?
• Was the severity of the action taken against the potential employee warranted by the nature of the charge or conviction?

 

Documenting and Justifying a Bona Fide Occupational Requirement

It is important for employers to document and show justification for a BFOR. They must identify and document essential job requirements, which must be reasonable and in good faith. Employers need to be able to identify the potential impact on protected groups and then determine if any protected characteristics can be accommodated.

The Ontario Human Rights Commission (OHRC) has published guidelines for setting job requirements. Employers need to understand if the rule or standard being adopted is rationally connected to the job they are hiring for. A rule or standard must be adopted to meet a legitimate work-related purpose. A standard will not be considered reasonably necessary unless the employer can show that it would be an undue hardship to accommodate individual employees sharing the characteristics of the claimant. Employers must also investigate alternative approaches to the requirements.

There are requirements that would not be considered BFORs. These include:

• Relate the incidental duties instead of the essential parts of the job
• Are based on co-worker or customer preferences and exclude persons because of protected characteristics
• Rely on stereotypical assumptions linked to protected characteristics, such as disability, race or sex, to assess an individual’s ability to perform the job duties
• State that the job must be performed only in a certain way even though reasonable alternative may exist

 

To see examples of possible BFOR situations and learn more how they affect the background screening industry, listen to the OnDemand version of the very informative webinar. You can also sign up for the next webinar in the Employment Law and HR series, “Workplace Accommodations.”

Please note: Sterling Talent Solutions is not a law firm. The material available in this publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.

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