there may be limitations or preferences in hiring based on
BFORs – those requirements that are necessary to ensure
the proper and safe performance of the essential aspects of
the job.
To constitute a BFOR, the requirement must be for a purpose
or goal that is rationally connected to the functions of
the position, be adopted in good faith and be necessary to
accomplish the purpose or goal. To establish that a limitation
or preference in hiring is a BFOR, it must be the case
that it is not possible to accommodate persons with the
characteristics of a particular group by shifting, modifying
or altering the job duties, tasks and/or requirements. This
can require challenging our assumptions about the duties
of a job and who may be best suited to perform those duties.
For example, in the Supreme Court of Canada decision
in British Columbia (Public Service Employee Relations
Commission) v. BCGSEU, 1999 3 SCR 3, the government had
established minimum physical fitness standards for forest
firefighters in the province, including an aerobic standard.
The aerobic standard was set at a level that most women
were not able to meet due to physiological differences
between women and men. The government was not able
to establish that the particular aerobic standard was necessary
to ensure that the job of forest firefighter would be
performed safely and efficiently, or that it would experience
undue hardship if a different standard was used. The standard
was therefore discriminatory on the basis of sex as it
was not a BFOR.
Questions for employers when preparing to hire
Before embarking on a new hiring process, employers
should consider how to meet their human rights obligations
in hiring. Considering the following questions may be
helpful:
1. What tasks and duties are genuinely required in this
position?
2. Are we directly or indirectly limiting persons with
the characteristics of a protected group from this
position?
3. If there is a standard that has been set for the
position, is that standard truly necessary for performance
of the essential elements of the job?
4. Is there a way to provide accommodation in this
position so that the essential duties can still be
performed by persons with the characteristics of a
protected group?
Consulting a lawyer when preparing to start a hiring process
can help to ensure that you are not running afoul of
your obligations under human rights law.
Dayna M. Steinfeld practises primarily in the areas of
regulatory and administrative law, employment law and
civil litigation. You may reach her at (204) 957 8321 or
dsteinfeld@fillmoreriley.com
LEGAL
The prohibition against discrimination in
employment applies to all aspects of the employment
relationship, including the hiring stage.
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