Constructive or adverse discrimination in employment occurs when rules or standards are established that do not discriminate at first glance, but have an adverse effect on persons whose rights are protected under human rights legislation. In such a case, the burden shifts to the employer to establish that such rules or standards are essential to the job, also known as bona fide occupational requirements (BFOR’s). British Columbia (Public Service Employee Relations Commission) v. BCGSEU is the leading case which addresses this issue. This seminal human rights case from the Supreme Court of Canada established a three-part test which has become the standard to evaluate constructive discrimination.

Background facts

Tawney Meiorin was a fire fighter employed by the British Columbia Ministry of Forests. She had performed her job in a satisfactory manner for three years. When a mandatory fitness test was implemented under a new policy, Ms. Meiorin failed to meet the aerobic standard after four attempts, while more often than not, her male counterparts successfully passed.

As a result of her test performance, Ms. Meiorin was dismissed from her job. Her union filed a grievance on her behalf claiming discrimination on the basis of sex. Her position, and that of her union, was that the aerobic testing constituted a form of constructive discrimination, as it had an adverse effect on her as a female. The Union also suggested that women should be tested according to a lower aerobic standard.[1] The arbitrator ruled in favour of Ms. Meiorin and ordered her reinstatement.

B.C. Court of Appeals ruling

The province of British Columbia disagreed with the finding and appealed the arbitrator’s decision. The B.C. Court of Appeal quashed the arbitrator’s award, concluding that the province had not discriminated against Ms. Meiorin. The court maintained that the arbitrator had concluded that the running test was necessary in regards to the safety and efficiency of the task needed for the job.[2] The Human Rights Code stipulates that an employer must accommodate an employee to the point of undue hardship. The government maintained that Ms. Meiorin had been accommodated as she had received individualized testing. The court also indicated that to lower the aerobic standard for women only would result in reverse discrimination against male employees.[3]

The Supreme Court ruling

In an appeal to the Supreme Court of Canada, the court held that Ms. Meiorin had established that the aerobic standard was prima facie discriminatory, and that the government had not demonstrated that it was a bona fide occupational requirement for the job of fire fighting and to ensure the safe performance of work.

In the decision, McLachlin J (as she then was) outlined the following three-step test for determining whether a prima facie discrimination standard is a BFOR, stating an employer may justify the impugned standard by establishing on a balance of probabilities:

1. that the employer adopted the standard for a purpose rationally connected to the performance of the job;
2. that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and
3. that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.[4]

The Supreme Court of Canada ordered Ms. Meiorin reinstated to her former position and compensated for her lost wages and benefits. Some 15 years later, the Meiorin case and the resulting standards it established, remain the test of constructive discrimination and bona fide occupational requirements under human rights legislation.

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[1] (2001) 46 McGill L.J.533, p.536
[2] Ibid. p.536
[3] British Columbia (Public Service Employee Relations Commission) v. BCGSEU (1997) 149 D.L.R. (4th)261, 37 B.C.L.R. (3d) (C.A.)
[4] British Columbia (Public Service Employee Relations Commission) v. BCGSEU (1997) para. 54