Meiorin Decision Summary - Sandalwood Heights



Meiorin Decision Summary

British Columbia (Public Service Employee Relations Commission) v.

British Columbia Government and Service Employees’ Union (BCGSEU)

(Supreme Court of Canada) (1999) (a.k.a. Meiorin)

Facts

* Tawney Meiorin worked as a fire fighter for the British Columbia government. She had been performing satisfactorily as a fire fighter for three years before the government adopted a new series of fitness tests for fire fighters.

* Meiorin passed three of the four tests but failed the aerobic capacity test, a 2.5 km run. She completed her run in 11 minutes, 49.4 seconds rather than the 11 minutes designated as the standard. As a result, she was dismissed.

* Meiorin filed a grievance alleging discrimination on the basis of gender. She argued that the aerobic standard discriminated against women since most women have a lower aerobic capacity than men, and unlike men, cannot meet the standard with increased training.

* The British Columbia government argued that the minimum aerobic standard was a bona fide occupational requirement (genuine occupation qualification).

DISCUSSION: SHOULD MEIORIN HAVE BEEN DISMISSED BECAUSE SHE COULD NOT PASS THE AEROBIC CAPACITY TEST?

Arbitration Decision

* The grievance arbitrator found that the aerobic capacity test (i.e. the 2.5 km run) was adverse effect discrimination against women. Furthermore, there was no evidence that the aerobic capacity aspect was necessary for either men or women to perform the work of a forest firefighter safely and efficiently.

* He ruled that the government had not met its duty to accommodate Ms. Meiorin and ordered that she be reinstated and compensated for lost wages and benefits.

British Columbia Court of Appeal Decision

* The case found its way before the British Columbia Court of Appeal. This Court held that as long as the standard was necessary to the safe and efficient performance of the job and was applied through individual testing, there was no discrimination. It also held that to allow Ms. Meiorin to succeed would be “reverse discrimination” by setting a lower standard for women. The Court of Appeal allowed the government’s appeal and reversed the arbitrator’s decision.

* The Union appealed to the Supreme Court of Canada.

Discussion: who do you agree with? the arbitration decision or the court of appeal?

Supreme Court of Canada Decision: Part 1

Unified approach

The Supreme Court of Canada eliminated the traditional approach to discrimination, which made a distinction between direct and indirect, or adverse effect discrimination. The Court replaced it with a “unified” approach. In other words, there is no need to distinguish between direct and indirect discrimination.

Onus

The Supreme Court affirmed that once a prima facie discrimination has been proven, the onus shifts to the employer to show that the standard or policy is a bona fide occupational requirement (whether a job requirement or a practice is essential).

The Supreme Court struggled with this, and established a test for determining whether the employer established a valid BFOR.

Three-step test for BFOR

This significant change from past approaches to accommodation is the three-step test adopted by the Court for determining whether the employer established, that a prima facie discriminatory standard or policy is BFOR:

1) The employer must show that it adopted the standards for a purpose that is rationally connected to the function being performed. The focus should be on the validity of the general purpose and not the validity of the particular standard (Was the fitness test actually a valid assessment of someone’s ability to do the job?);

2) The employer must establish that it adopted the standard in an honest and good faith belief that it was necessary to fulfill that legitimate work-related purpose (Did they establish this test as a sneaky way to make sure women would not be hired?); and,

3) The employer must establish that the standard is reasonably necessary to accomplish its work-related purpose. To show that the standard is reasonably necessary, it must demonstrate that it is impossible to accommodate individual employees sharing the characteristics of the individual without imposing undue hardship upon the employer (So, could the employer actually say: OK, we know we are discriminating against women, but honestly, we don’t have a choice? This fitness test is crucial. If women can’t pass the test, they can’t do the job).

The third step is the core of accommodation. It is here that the concept of inclusion comes into play. Employers have to prove that their standards, rules, policies are reasonable necessary for the safe and efficient performance of the job at issue. This includes proving that it is impossible, without undue hardship, to accommodate the human rights characteristics of a group or of an individual.

The Court elaborated on this aspect of the test by indicating that courts must examine whether the standard itself could be altered so as to be non-discriminatory as well as whether the individual accommodation to a standard could be made.

Therefore, the BFOR and duty to accommodate concepts are united. A BFOR cannot be valid without exhaustion of the duty to accommodate built into the standard, policy, rule etc.

Application of the three-part test to the facts in Meiorin

□ The British Columbia government was able to meet the first two steps of the test but failed the last step. (So the British Columbia government was NOT secretly trying to block the hiring of women!) In examining the third step, the Court held that the employer could not show that the fitness test was reasonably necessary in order to identify those who would be able to perform the tasks of a forest fire fighter safely and efficiently.

□ Remember, that Meiorin had successfully performed the job for a three-year period, yet had failed the standard which had been set based on all mostly male testing samples.

□ The Supreme Court also had words for the developers of the test.

⇨ The Court said that the procedures adopted by the researchers who developed the standard were flawed because they simply described the average aerobic capacity of the people already doing the job (which was a mostly male workforce) without determining whether this was the minimum level required in order to perform the job safely.

⇨ The standard was also flawed because the researchers did not determine whether the aerobic capacity of male and female test subjects varied or related to their ability to perform the job.

⇨ The Court also stated that employers designing workplace standards have an obligation to be aware of differences between individuals, and differences that characterize groups of individuals. They must build concepts of equality into workplace standards. The standard itself is required to provide for individual accommodation, up to the point of undue hardship.

□ The Court has given extended meaning to the duty to accommodate by incorporating the idea that standards and policies must be examined to see if they can be changed to eliminate the discrimination from the outset and not only when an individual or group has filed a complaint.

Undue Hardship

The Court affirmed that the undue hardship standard is set high. Under section 15(2) the Canadian Human Rights Act, the factors that may be considered as contributing to undue hardship are limited to health, safety and cost. Undue hardship does not mean merely inconvenience.

Summary

□ Prior to this decision, the duty to accommodate an employee only arose when a problem had been identified. For example, in the situation of an employee who is no longer able to perform the job in the traditional manner, the employee had an obligation to advise the employer of the need to be accommodated and the employer had an obligation to ensure that difficulties arising out of discrimination based on a prohibited ground were accommodated.

□ Because of this decision “Accommodation” now means that all workplace standards, rules, policies and practices must be proactively designed to be “inclusive”, to reflect and meet the needs of all segments of society, short of undue hardship.

□ The key requirement is for employers to ensure they do not institute barriers against those segments of society that are not present in the workplace, due to historic systemic discrimination. The new concept creates considerable overlap with the purpose of the Employment Equity Act .

□ In addition, individuals whose needs have not been addressed by the initial pro-active process are entitled to seek further individual accommodation measures, up to the point of undue hardship.

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