Employers need to scrutinize all job testing for human rights violations, Supreme Court rules

Discrimination is discrimination, no matter whether it’s direct or indirect. In a unanimous decision, the Supreme Court of Canada restored a British Columbia woman’s position as a firefighter, ruling a provincial physical fitness test discriminated against women.

Tawney Meiorin, 33, lost her job with the B.C. Ministry of Forests in 1995 because she took 49.4 seconds too long to complete a 2.5-kilometre run, a component of the provincial firefighting test.

Canadian employers with any form of discriminatory job testing rules must now be prepared to prove in court that they are a bona fide job requirement. Before, only direct discrimination had to stand up to the rigorous courtroom test to prove a bona fide requirement.

In making the law simpler and standard to any case of discriminatory job rules, the Supreme Court said it is all too easy for employers to develop stringent standards that can end up excluding minorities, even if the resulting discrimination is entirely inadvertent.

Justice Beverley McLachlin wrote that although the province developed the firefighter test in good faith, it failed to properly take into account the differing physiology of males and females.

Kim Buchanan, a lawyer with the Women’s Legal Education and Action Fund, said that until now, employers had only to justify “direct” discrimination as a bona fide job requirement. An example of direct discrimination is a hiring policy that outright excludes women.

A standard or test that has an “adverse” discriminatory effect, such as a hiring policy which excludes people under a certain height, did not have to be mete out under the same criteria. Instead, said Buchanan, employers had only to find a way to accommodate the individual facing adverse discrimination in the workplace.

“Now all rules that have a discriminatory effect will have to be scrutinized as to whether they are a bona fide occupational requirement or not. What’s the point in keeping any rule with discriminatory effects if it is not needed?

“Often it is hard to tell the difference whether discrimination is direct or adverse. This makes the law better. Before employers were not sure of their obligations and workers were not sure of their rights. We are extremely pleased with this decision,” added Buchanan.

The Supreme Court said any discriminatory job test will have to pass three criteria:

•a test will have to be shown to be rationally related to the requirements of job performance;

•it must be created in good faith; and

•it must be reasonably necessary in order to accomplish a valid purpose.

In other words, Buchanan said, the employer must be able to show that it could not employ a different standard without undue hardship, such as compromising safety. The sort of financial, administrative or health considerations that would constitute undue hardship were not specified by the Supreme Court.

The Supreme Court noted that the province showed two of the three requirements necessary to prove the testing was a bona fide occupational requirement: it showed good faith and a connection between its test and the goal it was seeking. However, it failed to show that making it more difficult for a woman to meet the physical standards is necessary in order to accomplish the standard’s purpose.

McLachlin said it was revealing that 65 to 70 per cent of men who took the test passed on their initial attempt, but only 35 per cent of female applicants did so.

“If employers are developing workplace standards and rules, they will now have to consider whether they exclude any people, and if they do, they have to consider whether it is justifiable. They will have to make them (rules) more inclusive,” said Buchanan.

The ruling restores a B.C. labour arbitrator’s decision that reinstated Meiorin in her job with the province’s Ministry of Forests. The Supreme Court ordered the province to compensate her for lost wages and benefits.

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