Although Ontario has robust human rights laws, they are not boundless.

In the workplace, a worker may be able to show discrimination where a workplace requirement or factor results in unequal treatment based on certain protected characteristics. However, there are exceptions and defences that an employer can assert in response.

For example, an employer is required to accommodate a worker only up to a certain point, called undue hardship. Further, Ontario’s Human Rights Code (the Code) states that the rights of a person are not infringed where the discriminatory requirement, qualification, or factor is reasonable and bona fide given the nature of the employment. What does this mean? Read on to find out.

What does “Bona Fide Occupational Requirement” mean?

A bona fide occupational requirement can generally be defined as a standard, rule, or factor that is essential to performing the duties of a particular position.

For example, it may be a bona fide occupational requirement to have the ability to lift a certain amount of weight to work as a construction worker. On its face, such a requirement may be discriminatory against persons with certain disabilities, of a certain age, or based on sex. However, where the employer can demonstrate that the standard is integral to carrying out the duties of the position and that any changes to the standard would create undue hardship, then it may be a legally justifiable standard.

 At what stage does a bona fide occupational requirement argument come up during a human rights case?

When alleging discrimination, a worker must show, on a balance of probabilities, that they experienced discrimination. That is, a worker must show that s/he experienced an adverse impact which is connected to a protected characteristic. This is called prima facie discrimination.

Once the worker establishes that it is more likely than not that s/he experienced discrimination, the burden shifts to the employer to justify their conduct, based on exemptions found in the Code.

Since a bona fide occupational requirement is a defence under the Code, an analysis of whether a requirement is reasonable and bona fide is conducted after the employee has made out a prima facie case of discrimination. This analysis includes determining whether it would be possible to accommodate the worker without causing undue hardship.

How do you determine if a rule or requirement is valid?

In a seminal case, the Supreme Court of Canada outlined a three-step test to determine whether a prima facie discriminatory rule or standard may be justified as a bona fide occupational requirement. The employer must establish that:

  1. it adopted the standard for a purpose that is rationally connected to the performance of the job;
  2. it adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
  3. that the standard is reasonably necessary to accomplish that legitimate work-related purpose.

To demonstrate that a particular standard reasonably necessary under the third step, the employer must establish that it is impossible to accommodate the worker without imposing undue hardship upon the employer.

What is considered under ‘undue hardship’?

The Code only lists three considerations when assessing whether an accommodation presents undue hardship:

  1. cost;
  2. outside sources of funding (If any); and
  3. health and safety requirements.

Keep in mind undue hardship is a high threshold to meet and some degree of hardship is acceptable.

Where an employer is asserting undue hardship, it needs to present concrete data to support a claim that costs are so substantial, or accommodation is likely to cause significant health and safety risks, to demonstrate that they have reached this legal limit.

 Can an employer require its workers to have the COVID-19 vaccine as a bona fide occupational requirement?

The hot-button issue dominating the minds of many workers is whether their employer can assert that receiving the COVID-19 vaccine is a bona fide occupational requirement for their position. The difficulty with this question is that there is no conclusive legal answer yet. Since it has not yet been litigated, most employment lawyers are left to rely previous case law to gauge whether an employer may be able to claim bona fide occupational requirement.

Current case law suggests that whether an employer can require a vaccine partly depends on the nature of the workplace. For instance, if the workplace is one where the workers are required to engage with vulnerable individuals, such as in a hospital or long-term care setting, then it may be reasonable to require that workers be vaccinated.

In contrast, there may be workplace settings where alternative measures are possible to mitigate the risk of COVID-19. For instance, individuals who are not vaccinated may be able to complete their essential duties by working from home and/or taking alternative protective measures such as distancing and wearing protective personal equipment in the workplace. In these situations, whether a mandatory vaccination policy will be upheld is less clear.

Other factors that may impact the reasonableness of a mandatory vaccination policy in the workplace include whether it is a unionized setting, privacy considerations, and the employer’s consideration of human rights principles. For more information, please contact an experienced employment lawyer.

Contact Us

If you are an employer who needs to establish a bona fide occupational requirement, or an employee who believes you’ve been discriminated against, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at info@achkarlaw.com and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support with same day response, visit our CLO Program page for our strategic solutions.

 

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