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Discrimination, Bona Fide Occupational Requirements, Accommodation, and Undue Hardship: What you need to know

What is Discrimination?

Section 7(1) of the Alberta Human Rights Act defines discrimination regarding employment practices in the following way:

“No employer shall refuse to employ or refuse to continue to employ any person, or discriminate against any person with regard to employment or any term or condition of employment, because of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person.”

What the above statement implies is that discrimination is not tolerated on the basis of any of the following characteristics:

  • Race
  • Religious beliefs
  • Colour
  • Gender (including gender identity & expression)
  • Physical disability
  • Mental disability
  • Age
  • Ancestry
  • Place of origin
  • Marital status
  • Source of income
  • Family status
  • Sexual orientation

If the discrimination is related to anything OTHER than the items listed above, it is generally NOT a discrimination that could be filed as a human rights complaint (certain exceptions may apply depending on the scenario). If the discrimination is related to one or more of the items listed above, this is where bona fide occupational requirements come into the equation.

Bona Fide Occupational Requirements (BFOR’s)

Section 7(3) of the Alberta Human Rights Act states the following:

“Subsection 7(1) does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.”

What this means is that discrimination is acceptable if it is based on a bona fide occupational requirement. An example of this might be an employee who refuses to wear a hard hat because his religion requires the wearing of a turban at all times, but his job has identified overhead safety hazards that require the use of a hard hat. With this example, the enforcement of the hard hat rule is bona fide since it is in the interests of preserving safety. Even though requiring the employee to wear a hard hat despite his religious beliefs is a form of discrimination, this type of discrimination is justified and is not considered a contravention of Human Rights legislation.

Section 11 of the Alberta Human Rights Act defines bona fide occupational requirement as the following:

“A contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravened the Act shows that the alleged contravention was reasonable and justifiable in the circumstances.”

The way to determine if discrimination is bona fide is by using the Meiorin Test, which includes working through the following questions:

  1. Was the requirement “adopted for a purpose rationally connected to job performance”?
  2. Was the requirement “adopted in an honest and good faith belief that the standard is necessary for the fulfillment of that legitimate purpose?”
  3. Is the requirement “reasonably necessary to accomplish that legitimate purpose?”

If you can answer YES to all of the above 3 questions, you have passed the Meiorin Test, which means you may argue that the discrimination was bona fide.

Accommodation: how do we determine if accommodation is possible?

Now that we’ve established that discrimination may have occurred, but that the discrimination is bona fide, your duty as the employer is to seek accommodation. According to the Alberta Human Rights Commission, “Accommodation means making changes to certain rules, standards, policies, workplace cultures and physical environments to ensure that they don’t have a negative effect on a person because of the person’s mental or physical disability, religion, gender or any other protected ground.”

Both the employer and the employee have rights and responsibilities pertaining to accommodation, to ensure good communication and a partnership relationship between worker and employee. These rights and responsibilities can be found on the Alberta Human Rights Commission at www.albertahumanrights.ab.ca. If either party breaches their duties and responsibilities, they may be at risk.

Undue Hardship

The courts consider the occurrence of undue hardship if any of the following factors come into play (please note this is not an exhaustive or exclusive list):

  • Financial cost
  • Size and resources of the employer
  • Disruption to operations
  • Morale problems of other employees brought about by accommodation
  • Substantial interference with the rights of other individuals or groups
  • Interchangeability of workforce and facilities
  • Health and safety concerns

Many companies cite health and safety concerns to demonstrate that an accommodation is creating undue hardship because the Alberta Occupational Health & Safety Act supersedes the Alberta Human Rights Act so long as you do not overstep. If we go back to our previous example with the worker wearing the turban, this would be an example of overstepping: The worker agrees to remove his outer turban so that he can wear his hard hat and comply with the safety regulation, but wishes to still wear his under-turban as it fits underneath the hard hat and the hard hat still functions as it is intended (this would be acceptable as per OH&S). The employer decides to terminate the worker based on non-compliance with their given accommodation.

In this example the employer has overstepped their bounds and would be in violation of the agreed-upon accommodation.

So how do we put all of this together?
There are tools available that can be used to determine if you are at risk of a human rights complaint. By using the above information and working through the following formula, it can give you a good sense of whether a discrimination is bona fide and what steps (if any) you must take to accommodate: