British Columbia (Public Service Employee Relations Commission) v. BCGSEU

British Columbia (Public Service Employee Relations Commission) v. BCGSEU
Collection
Supreme Court Judgments
Date
1999-09-09
Report
[1999] 3 SCR 3
Case number
26274
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 26274
Decision Content
British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3
The British Columbia Government and Service
Employees’ Union Appellant
v.
The Government of the Province of British Columbia
as represented by the Public Service Employee
Relations Commission Respondent
and
The British Columbia Human Rights Commission,
the Women’s Legal Education and Action Fund,
the DisAbled Women’s Network of Canada
and the Canadian Labour Congress Interveners
Indexed as: British Columbia (Public Service Employee Relations Commission) v. BCGSEU
File No.: 26274.
1999: February 22; 1999: September 9.
Present: Lamer C.J. and L’Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for british columbia
Civil rights -- Sex -- Employment -- Adverse effect discrimination -- Forest firefighters -- Women having more difficulty passing fitness test owing to physiological differences -- Whether fitness test a bona fide occupational requirement -- Test to be applied -- Human Rights Code, R.S.B.C. 1996, c. 210, s. 13(1)(a), (b), (4).
The British Columbia government established minimum physical fitness standards for its forest firefighters. One of the standards was an aerobic standard. The claimant, a female firefighter who had in the past performed her work satisfactorily, failed to meet the aerobic standard after four attempts and was dismissed. The claimant’s union brought a grievance on her behalf.
Evidence accepted by the arbitrator designated to hear the grievance demonstrated that, owing to physiological differences, most women have a lower aerobic capacity than most men and that, unlike most men, most women cannot increase their aerobic capacity enough with training to meet the aerobic standard. No credible evidence showed that the prescribed aerobic capacity was necessary for either men or women to perform the work of a forest firefighter safely and efficiently. The arbitrator found that the claimant had established a prima facie case of adverse effect discrimination and that the Government had not discharged its burden of showing that it had accommodated the claimant to the point of undue hardship. The Court of Appeal allowed an appeal from that decision. The narrow issue here was whether the Government improperly dismissed the claimant. The broader legal issue, however, was whether the aerobic standard that led to her dismissal unfairly excluded women from forest firefighting jobs.
Held: The appeal should be allowed.
The conventional approach of categorizing discrimination as “direct” or “adverse effect” discrimination should be replaced by a unified approach for several reasons. First, the distinction between a standard that is discriminatory on its face and a neutral standard that is discriminatory in its effect is difficult to justify: few cases can be so neatly characterized. Second, it is disconcerting that different remedies are available depending on the stream into which a malleable initial inquiry shunts the analysis. Third, the assumption that leaving an ostensibly neutral standard in place is appropriate so long as its adverse effects are felt only by a numerical minority is questionable: the standard itself is discriminatory because it treats some individuals differently from others on the basis of a prohibited ground, the size of the “affected group” is easily manipulable, and the affected group can actually constitute a majority of the workforce. Fourth, the distinctions between the elements an employer must establish to rebut a prima facie case of direct or adverse effect discrimination are difficult to apply in practice. Fifth, the conventional analysis may serve to legitimize systemic discrimination. Sixth, a bifurcated approach may compromise both the broad purposes and the specific terms of the Human Rights Code. Finally, the focus by the conventional analysis on the mode of discrimination differs in substance from the approach taken to s. 15(1) of the Canadian Charter of Rights and Freedoms .
A three-step test should be adopted for determining whether an employer has established, on a balance of probabilities, that a prima facie discriminatory standard is a bona fide occupational requirement (BFOR). First, the employer must show that it adopted the standard for a purpose rationally connected to the performance of the job. The focus at the first step is not on the validity of the particular standard, but rather on the validity of its more general purpose. Second, the employer must establish that 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. Third, the employer must establish 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.
It may often be useful to consider separately, first, the procedures, if any, which were adopted to assess the issue of accommodation and, second, the substantive content of either a more accommodating standard which was offered or alternatively the employer’s reasons for not offering any such standard.
Here, the claimant having established a prima facie case of discrimination, the burden shifts to the Government to demonstrate that the aerobic standard is a BFOR. The Government has satisfied the first two steps of the BFOR analysis. However, the Government failed to demonstrate that this particular aerobic standard is reasonably necessary to identify those persons who are able to perform the tasks of a forest firefighter safely and efficiently. The Government has not established that it would experience undue hardship if a different standard were used.
The procedures adopted by the researchers who developed the aerobic standard were problematic on two levels. First, their approach was primarily a descriptive one. However, merely describing the characteristics of a test subject does not necessarily allow one to identify the standard minimally required for the safe and efficient performance of the job. Second, the studies failed to distinguish the female test subjects from the male test subjects, who constituted the majority of the sample groups. The record therefore did not permit a decision as to whether men and women require the same minimum level of aerobic capacity to perform a forest firefighter’s tasks safely and efficiently.
Assuming that the Government had properly addressed the question of accommodation in a procedural sense, its response that it would experience undue hardship if it had to accommodate the claimant is deficient from a substantive perspective. There is no reason to interfere with the arbitrator’s holding that the evidence fell well short of establishing that the claimant posed a serious safety risk to herself, her colleagues, or the general public. The Government also claimed that accommodating the claimant would undermine the morale of the workforce. However, the attitudes of those who seek to maintain a discriminatory practice cannot be determinative of whether the employer has accommodated the claimant to the point of undue hardship. If it were possible to perform the tasks of a forest firefighter safely and efficiently without meeting the aerobic standard, the rights of other forest firefighters would not be affected by allowing the claimant to continue performing her job. The order of the arbitrator reinstating the claimant to her former position and compensating her for lost wages and benefits was restored.
Cases Cited
Referred to: Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; Ontario (Human Rights Commission) v. Borough of Etobicoke, [1982] 1 S.C.R. 202; Caldwell v. Stuart, [1984] 2 S.C.R. 603; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489; Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297; Large v. Stratford (City), [1995] 3 S.C.R. 733; Canada (Human Rights Commission) v. Toronto-Dominion Bank, [1998] 4 F.C. 205; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; Griggs v. Duke Power Co., 401 U.S. 424 (1971); Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Canada (Attorney General) v. Levac, [1992] 3 F.C. 463; Large v. Stratford (City) (1992), 92 D.L.R. (4th) 565; Saran v. Delta Cedar Products Ltd., [1995] B.C.C.H.R.D. No. 3 (QL); Grismer v. British Columbia (Attorney General) (1994), 25 C.H.R.R. D/296; Thwaites v. Canada (Armed Forces) (1993), 19 C.H.R.R. D/259; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561; Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; R. v. Cranston, [1997] C.H.R.D. No. 1 (QL).
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 15(1) .
Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 15(2) [am. 1998, c. 9, s. 10].
Human Rights Act, S.Y. 1987, c. 3, s. 7.
Human Rights Code, R.S.B.C. 1996, c. 210, ss. 3, 13(1)(a), (b), (4).
Human Rights Code, R.S.O. 1990, c. H.19, s. 24(2).
Human Rights Code, S.M. 1987-88, c. 45, s. 12.
Authors Cited
Canada. Canadian Human Rights Commission. The Effects of the Bhinder Decision on the Canadian Human Rights Commission: A Special Report to Parliament. Ottawa: The Commission, 1986.
Crane, M. C. “Human Rights, Bona Fide Occupational Requirements and the Duty to Accommodate: Semantics or Substance?” (1996), 4 C.L.E.L.J. 209.
Day, Shelagh, and Gwen Brodsky. “The Duty to Accommodate: Who Will Benefit?” (1996), 75 Can. Bar Rev. 433.
Etherington, Brian. “Central Alberta Dairy Pool: The Supreme Court of Canada’s Latest Word on the Duty to Accommodate” (1993), 1 Can. Lab. L.J. 311.
Lepofsky, M. David. “The Duty to Accommodate: A Purposive Approach” (1993), 1 Can. Lab. L.J. 1.
McKenna, Ian B. “Legal Rights for Persons with Disabilities in Canada: Can the Impasse Be Resolved?” (1997-98), 29 Ottawa L. Rev. 153.
Messing, Karen. One-Eyed Science: Occupational Health and Women Workers. Philadelphia: Temple University Press, 1998.
Messing, Karen, and Joan Stevenson. “Women in Procrustean Beds: Strength Testing and the Workplace” (1996), 3 Gender, Work and Organization 156.
Molloy, Anne M. “Disability and the Duty to Accommodate” (1993), 1 Can. Lab. L.J. 23.
Pentney, William. “Belonging: The Promise of Community -- Continuity and Change in Equality Law 1995-96” (1996), 25 C.H.R.R. C/6.
Phillips, Paul, and Erin Phillips. Women and Work: Inequality in the Canadian Labour Market, rev. ed. Toronto: James Lorimer & Co., 1993.
Watkin, Kenneth. “The Justification of Discrimination under Canadian Human Rights Legislation and the Charter : Why So Many Tests?” (1993), 2 N.J.C.L. 63.
Yalden, Maxwell F. “The Duty to Accommodate -- A View from the Canadian Human Rights Commission” (1993), 1 Can. Lab. L.J. 283.
APPEAL from a judgment of the British Columbia Court of Appeal (1997), 37 B.C.L.R. (3d) 317, 94 B.C.A.C. 292, 152 W.A.C. 292, 149 D.L.R. (4th) 261, [1997] 9 W.W.R. 759, 30 C.H.R.R. D/83, [1997] B.C.J. No. 1630 (QL), allowing an appeal from a decision of a Labour Arbitration Board (1996), 58 L.A.C. (4th) 159, allowing a grievance and reinstating the employee with full compensation. Appeal allowed.
Kenneth R. Curry, Gwen Brodsky, John Brewin and Michelle Alman, for the appellant.
Peter A. Gall, Lindsay M. Lyster and Janine Benedet, for the respondent.
Deirdre A. Rice, for the intervener the British Columbia Human Rights Commission.
Kate A. Hughes and Melina Buckley, for the interveners the Women’s Legal Education and Action Fund, the DisAbled Women’s Network of Canada and the Canadian Labour Congress.
The judgment of the Court was delivered by
McLachlin J. --
I. Introduction
1 Seven years ago Tawney Meiorin was hired as a forest firefighter by the Province of British Columbia (the “Government”). Although she did her work well, she lost her job three years later when the Government adopted a new series of fitness tests for forest firefighters. She passed three of the tests but failed a fourth one, a 2.5 kilometre run designed to assess whether she met the Government’s aerobic standard, by taking 49.4 seconds longer than required.
2 The narrow issue in this case is whether the Government improperly dismissed Ms. Meiorin from her job as a forest firefighter. The broader legal issue is whether the aerobic standard that led to Ms. Meiorin’s dismissal unfairly excludes women from forest firefighting jobs. Employers seeking to maintain safety may err on the side of caution and set standards higher than are necessary for the safe performance of the work. However, if men and women do not have an equal ability to meet the excessive standard, the effect may be to exclude qualified female candidates from employment for no reason but their gender. Like human rights legislation throughout Canada, the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210, seeks to counter this by requiring employers to justify their standards where prima facie discrimination is established. The question in this case is whether the Government has done so.
3 Although this case may be resolved on the basis of the conventional bifurcated analysis this Court has applied to claims of workplace discrimination under human rights statutes, the parties have invited us to reconsider that approach. Accepting this invitation, I propose a revised approach to what an employer must show to justify a prima facie case of discrimination. On this approach, I conclude that Ms. Meiorin has demonstrated that the Government’s aerobic standard is prima facie discriminatory and the Government has failed to establish on the record before this Court that it is a bona fide occupational requirement (“BFOR”). I would therefore allow the appeal and restore the arbitrator’s decision to reinstate Ms. Meiorin.
II. Facts
4 Ms. Meiorin was employed for three years by the British Columbia Ministry of Forests as a member of a three-person Initial Attack Forest Firefighting Crew in the Golden Forest District. The crew’s job was to attack and suppress forest fires while they were small and could be contained. Ms. Meiorin’s supervisors found her work to be satisfactory.
5 Ms. Meiorin was not asked to take a physical fitness test until 1994, when she was required to pass the Government’s “Bona Fide Occupational Fitness Tests and Standards for B.C. Forest Service Wildland Firefighters” (the “Tests”). The Tests required that the forest firefighters weigh less than 200 lbs. (with their equipment) and complete a shuttle run, an upright rowing exercise, and a pump carrying/hose dragging exercise within stipulated times. The running test was designed to test the forest firefighters’ aerobic fitness and was based on the view that forest firefighters must have a minimum “VO2 max” of 50 ml.kg-1.min-1 (the “aerobic standard”). “VO2 max” measures “maximal oxygen uptake”, or the rate at which the body can take in oxygen, transport it to the muscles, and use it to produce energy.
6 The Tests were developed in response to a 1991 Coroner’s Inquest Report that recommended that only physically fit employees be assigned as front-line forest firefighters for safety reasons. The Government commissioned a team of researchers from the University of Victoria to undertake a review of its existing fitness standards with a view to protecting the safety of firefighters while meeting human rights norms. The researchers developed the Tests by identifying the essential components of forest firefighting, measuring the physiological demands of those components, selecting fitness tests to measure those demands and, finally, assessing the validity of those tests.
7 The researchers studied various sample groups. The specific tasks performed by forest firefighters were identified by reviewing amalgamated data collected by the British Columbia Forest Service. The physiological demands of those tasks were then measured by observing test subjects as they performed them in the field. One simulation involved 18 firefighters, another involved 10 firefighters, but it is unclear from the researchers’ report whether the subjects at this stage were male or female. The researchers asked a pilot group of 10 university student volunteers (6 females and 4 males) to perform a series of proposed fitness tests and field exercises. After refining the preferred tests, the researchers observed them being performed by a larger sample group composed of 31 forest firefighter trainees and 15 university student volunteers (31 males and 15 females), and correlated their results with the group’s performance in the field. Having concluded that the preferred tests were accurate predictors of actual forest firefighting performance -- including the running test designed to gauge whether the subject met the aerobic standard -- the researchers presented their report to the Government in 1992.
8 A follow-up study in 1994 of 77 male forest firefighters and 2 female forest firefighters used the same methodology. However, the researchers this time recommended that the Government initiate another study to examine the impact of the Tests on women. There is no evidence before us that the Government has yet responded to this recommendation.
9 Two aspects of the researchers’ methodology are critical to this case. First, it was primarily descriptive, based on measuring the average performance levels of the test subjects and converting this data into minimum performance standards. Second, it did not seem to distinguish between the male and female test subjects.
10 After four attempts, Ms. Meiorin failed to meet the aerobic standard, running the distance in 11 minutes and 49.4 seconds instead of the required 11 minutes. As a result, she was laid off. Her union subsequently brought a grievance on her behalf. The arbitrator designated to hear the grievance was required to determine whether she had been improperly dismissed.
11 Evidence accepted by the arbitrator demonstrated that, owing to physiological differences, most women have lower aerobic capacity than most men. Even with training, most women cannot increase their aerobic capacity to the level required by the aerobic standard, although training can allow most men to meet it. The arbitrator also heard evidence that 65 percent to 70 percent of male applicants pass the Tests on their initial attempts, while only 35 percent of female applicants have similar success. Of the 800 to 900 Initial Attack Crew members employed by the Government in 1995, only 100 to 150 were female.
12 There was no credible evidence showing that the prescribed aerobic capacity was necessary for either men or women to perform the work of a forest firefighter satisfactorily. On the contrary, Ms. Meiorin had in the past performed her work well, without apparent risk to herself, her colleagues or the public.
III. The Rulings
13 The arbitrator found that Ms. Meiorin had established a prima facie case of adverse effect discrimination by showing that the aerobic standard has a disproportionately negative effect on women as a group. He further found that the Government had presented no credible evidence that Ms. Meiorin’s inability to meet the aerobic standard meant that she constituted a safety risk to herself, her colleagues, or the public, and hence had not discharged its burden of showing that it had accommodated Ms. Meiorin to the point of undue hardship. He ordered that she be reinstated to her former position and compensated for her lost wages and benefits: (1996), 58 L.A.C. (4th) 159.
14 The Court of Appeal ((1997), 37 B.C.L.R. (3d) 317) did not distinguish between direct and adverse effect discrimination. It held that so long as the standard is necessary to the safe and efficient performance of the work and is applied through individualized testing, there is no discrimination. The Court of Appeal (mistakenly) read the arbitrator’s reasons as finding that the aerobic standard was necessary to the safe and efficient performance of the work. Since Ms. Meiorin had been individually tested against this standard, it allowed the appeal and dismissed her claim. The Court of Appeal commented that to permit Ms. Meiorin to succeed would create “reverse discrimination”, i.e., to set a lower standard for women than for men would discriminate against those men who failed to meet the men’s standard but were nevertheless capable of meeting the women’s standard.
IV. Statutory Provisions
15 The following provisions of the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210, are at issue on this appeal:
Discrimination in employment
13 (1) A person must not
(a) refuse to employ or refuse to continue to employ a person, or
(b) discriminate against a person regarding employment or any term or condition of employment
because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
. . .
(4) Subsections (1) and (2) do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement.
V. The Issues
16 The first issue on this appeal is the test applicable to s. 13(1) and (4) of the British Columbia Human Rights Code. The second issue is whether, on this test, Ms. Meiorin has established that the Government violated the Code.
VI. Analysis
17 As a preliminary matter, I must sort out a characterization issue. The Court of Appeal seems to have understood the arbitrator as having held that the ability to meet the aerobic standard is necessary to the safe and efficient performance of the work of an Initial Attack Crew member. With respect, I cannot agree with this reading of the arbitrator’s reasons.
18 The arbitrator held that the standard was one of the appropriate measurements available to the Government and that there is generally a reasonable relationship between aerobic fitness and the ability to perform the job of an Initial Attack Crew member. This falls short, however, of an affirmative finding that the ability to meet the aerobic standard chosen by the Government is necessary to the safe and efficient performance of the job. To the contrary, that inference is belied by the arbitrator’s conclusion that, despite her failure to meet the aerobic standard, Ms. Meiorin did not pose a serious safety risk to herself, her colleagues, or the general public. I therefore proceed on the view that the arbitrator did not find that an applicant’s ability to meet the aerobic standard is necessary to his or her ability to perform the tasks of an Initial Attack Crew member safely and efficiently. This leaves us to face squarely the issue of whether the aerobic standard is unjustifiably discriminatory within the meaning of the Code.
A. The Test
1. The Conventional Approach
19 The conventional approach to applying human rights legislation in the workplace requires the tribunal to decide at the outset into which of two categories the case falls: (1) “direct discrimination”, where the standard is discriminatory on its face, or (2) “adverse effect discrimination”, where the facially neutral standard discriminates in effect: Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 (hereinafter “O’Malley”), at p. 551, per McIntyre J. If a prima facie case of either form of discrimination is established, the burden shifts to the employer to justify it.
20 In the case of direct discrimination, the employer may establish that the standard is a BFOR by showing: (1) that the standard was imposed honestly and in good faith and was not designed to undermine the objectives of the human rights legislation (the subjective element); and (2) that the standard is reasonably necessary to the safe and efficient performance of the work and does not place an unreasonable burden on those to whom it applies (the objective element). See Ontario (Human Rights Commission) v. Borough of Etobicoke, [1982] 1 S.C.R. 202, at pp. 208-9, per McIntyre J.; Caldwell v. Stuart, [1984] 2 S.C.R. 603, at pp. 622-23, per McIntyre J.; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, at pp. 310-12, per Beetz J. It is difficult for an employer to justify a standard as a BFOR where individual testing of the capabilities of the employee or applicant is a reasonable alternative: Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489, at pp. 513-14, per Wilson J.; Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297, at pp. 1313-14, per Sopinka J.
21 If these criteria are established, the standard is justified as a BFOR. If they are not, the standard itself is struck down: Etobicoke, supra, at pp. 207-8, per McIntyre J.; O’Malley, supra, at p. 555, per McIntyre J.; Saskatoon, supra, at pp. 1308-10, per Sopinka J.; Central Alberta Dairy Pool, supra, at p. 506, per Wilson J.; Large v. Stratford (City), [1995] 3 S.C.R. 733, at para. 33, per Sopinka J.
22 A different analysis applies to adverse effect discrimination. The BFOR defence does not apply. Prima facie discrimination established, the employer need only show: (1) that there is a rational connection between the job and the particular standard, and (2) that it cannot further accommodate the claimant without incurring undue hardship: O’Malley, supra, at pp. 555-59, per McIntyre J.; Central Alberta Dairy Pool, supra, at pp. 505-6 and 519-20, per Wilson J. If the employer cannot discharge this burden, then it has failed to establish a defence to the charge of discrimination. In such a case, the claimant succeeds, but the standard itself always remains intact.
23 The arbitrator considered the aerobic standard to be a neutral standard that adversely affected Ms. Meiorin. The Court of Appeal, on the other hand, did not distinguish between direct and adverse effect discrimination, simply holding that it is not discriminatory to test individuals against a standard demonstrated to be necessary to the safe and efficient performance of the work. Approaching the case purely on the conventional bifurcated approach, the better view would seem to be that the standard is neutral on its face, leading one to the adverse effect discrimination analysis. On the conventional analysis, I agree with the arbitrator that a case of prima facie adverse effect discrimination was made out and that, on the record before him and before this Court, the Government failed to discharge its burden of showing that it had accommodated Ms. Meiorin to the point of undue hardship.
24 However, the divergent approaches taken by the arbitrator and the Court of Appeal suggest a more profound difficulty with the conventional test itself. The parties to this appeal have accordingly invited this Court to adopt a new model of analysis that avoids the threshold distinction between direct discrimination and adverse effect discrimination and integrates the concept of accommodation within the BFOR defence.
2. Why is a New Approach Required?
25 The conventional analysis was helpful in the interpretation of the early human rights statutes, and indeed represented a significant step forward in that it recognized for the first time the harm of adverse effect discrimination. The distinction it drew between the available remedies may also have reflected the apparent differences between direct and adverse effect discrimination. However well this approach may have served us in the past, many commentators have suggested that it ill-serves the purpose of contemporary human rights legislation. I agree. In my view, the complexity and unnecessary artificiality of aspects of the conventional analysis attest to the desirability of now simplifying the guidelines that structure the interpretation of human rights legislation in Canada.
26 I will canvass seven difficulties with the conventional approach taken to claims under human rights legislation. Taken cumulatively, they make a compelling case for revising the analysis.
(a) Artificiality of the Distinction Between Direct and Adverse Effect Discrimination
27 The distinction between a standard that is discriminatory on its face and a neutral standard that is discriminatory in its effect is difficult to justify, simply because there are few cases that can be so neatly characterized. For example, a rule requiring all workers to appear at work on Fridays or face dismissal may plausibly be characterized as either directly discriminatory (because it means that no workers whose religious beliefs preclude working on Fridays may be employed there) or as a neutral rule that merely has an adverse effect on a few individuals (those same workers whose religious beliefs prevent them from working on Fridays). On the same reasoning, it could plausibly be argued that forcing employees to take a mandatory pregnancy test before commencing employment is a neutral rule because it is facially applied to all members of a workforce and its special effects on women are only incidental.
28 Several courts and commentators have observed that it seems perverse to have a threshold classification that is so malleable, indeed “chimerical”: see, for example, Canada (Human Rights Commission) v. Toronto-Dominion Bank, [1998] 4 F.C. 205 (C.A.), at paras. 114 and 145, per Robertson J.A.; S. Day and G. Brodsky, “The Duty to Accommodate: Who Will Benefit?” (1996), 75 Can. Bar Rev. 433, at pp. 447-57; A. M. Molloy, “Disability and the Duty to Accommodate” (1993), 1 Can. Lab. L.J. 23, at pp. 36-37. Given the vague boundaries of the categories, an adjudicator may unconsciously tend to classify the impugned standard in a way that fits the remedy he or she is contemplating, be that striking down the standard itself or requiring only that the claimant’s differences be accommodated. If so, form triumphs over substance and the broad purpose of the human rights statutes is left unfulfilled.
29 Not only is the distinction between direct and indirect discrimination malleable, it is also unrealistic: a modern employer with a discriminatory intention would rarely frame the rule in directly discriminatory terms when the same effect -- or an even broader effect -- could be easily realized by couching it in neutral language: M. D. Lepofsky, “The Duty to Accommodate: A Purposive Approach” (1993), 1 Can. Lab. L.J. 1, at pp. 8-9. Dickson C.J., for one, recognized that this more subtle type of discrimination, which rises in the aggregate to the level of systemic discrimination, is now much more prevalent than the cruder brand of openly direct discrimination: Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, at p. 931. See also the classic case of Griggs v. Duke Power Co., 401 U.S. 424 (1971). The bifurcated analysis gives employers with a discriminatory intention and the forethought to draft the rule in neutral language an undeserved cloak of legitimacy.
(b) Different Remedies Depending on Method of Discrimination
30 The malleability of the initial classification under the conventional approach would not matter so much if both routes led to the same result. But, as indicated above, the potential remedies may differ. If an employer cannot justify a directly discriminatory standard as a BFOR, it will be struck down in its entirety. However, if the rule is characterized as a neutral one that adversely affects a certain individual, the employer need only show that there is a rational connection between the standard and the performance of the job and that it cannot further accommodate the claimant without experiencing undue hardship. The general standard, however, remains in effect. These very different results flow directly from the stream into which the initial inquiry shunts the analysis.
31 The proposition that dramatically different results should follow from a tenuous initial classification of the method of discrimination is disconcerting because the effect of a discriminatory standard does not substantially change depending on how it is expressed: see M. C. Crane, “Human Rights, Bona Fide Occupational Requirements and the Duty to Accommodate: Semantics or Substance?” (1996), 4 C.L.E.L.J. 209, at pp. 226-29. Kenneth Watkin therefore observes that the question should not be whether the discrimination is direct or indirect, but rather “whether the individual or group discriminated against receives the same protection regardless of the manner in which that discrimination is brought about”: K. Watkin, “The Justification of Discrimination under Canadian Human Rights Legislation and the Charter : Why So Many Tests?” (1993), 2 N.J.C.L. 63, at p. 88. These criticisms are compelling. It is difficult to justify conferring more or less protection on a claimant and others who share his or her characteristics, depending only on how the discriminatory rule is phrased.
(c) Questionable Assumption that Adversely Affected Group Always a Numerical Minority
32 From a narrowly utilitarian perspective, it could be argued that it is sometimes appropriate to leave an ostensibly neutral standard in place if its adverse effects are felt by only one or, at most, a few individuals. This seems to have been the original rationale of this Court’s adverse effect discrimination jurisprudence. In O’Malley, supra, McIntyre J. commented, at p. 555:
Where there is adverse effect discrimination on account of creed the offending order or rule will not necessarily be struck down. It will survive in most cases because its discriminatory effect is limited to one person or to one group, and it is the effect upon them rather than upon the general work force which must be considered.
In Central Alberta Dairy Pool, supra, Wilson J. held at p. 514, that “the group of people who are adversely affected . . . is always smaller than the group to which the rule applies”. More recently, in Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525, at p. 544, Cory J. made the more modest observation that “[a]lmost invariably, those adversely affected will be members of a minority group”.
33 To the extent that the bifurcated analysis relies on a comparison between the relative demographic representation of various groups, it is arguably unhelpful. First, the argument that an apparently neutral standard should be permitted to stand because its discriminatory effect is limited to members of a minority group and does not adversely affect the majority of employees is difficult to defend. The standard itself is discriminatory precisely because it treats some individuals differently from others, on the basis of a prohibited ground: see generally Toronto-Dominion Bank, supra, at paras. 140-41, per Robertson J.A. As this Court held in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at para. 66, if a rule has a substantively discriminatory effect on a prohibited ground, it should be characterized as such regardless of whether the claimant is a member of a majority or minority group.
34 Second, the size of the “group affected” is easily manipulable: see Day and Brodsky, supra, at p. 453. For example, in Toronto-Dominion Bank, supra, the Bank instituted a policy of having returning employees submit to drug tests. Was the affected group the small minority of returning employees who were drug-dependent, leading to a characterization of the policy as adverse effect discrimination? Or was the affected group all returning employees who were required to submit to invasive drug-testing on the assumption that some of them were drug-dependent, lending itself to a characterization of the policy as direct discrimination? “It is possible for a policy to be characterized as direct discrimination, or adverse effect discrimination, or both, depending on how ‘neutrality’ and the group affected are defined by the adjudicator”: Day and Brodsky, supra, at p. 453. Because the size of the affected group is so manipulable, it is difficult to justify using it as the foundation of the entire analysis.
35 Third, the emphasis on whether the claimant is a member of a majority or a minority group is clearly most unhelpful when the affected group actually constitutes a majority of the workforce: see B. Etherington, “Central Alberta Dairy Pool: The Supreme Court of Canada’s Latest Word on the Duty to Accommodate” (1993), 1 Can. Lab. L.J. 311, at pp. 324-25. The utilitarian arguments about the minority’s having to abide by the practices of the majority for reasons of economic efficiency or safety fade in strength as the affected group nears the status of the majority.
36 At this point, which exists where women constitute the adversely affected group, the adverse effect analysis may serve to entrench the male norm as the “mainstream” into which women must integrate. Concerns about economic efficiency and safety, shorn of their utilitarian cloaks, may well operate to discriminate against women in a way that is direct in every way except that contemplated by the legal nomenclature. An analysis that does not acknowledge this reality fails to give full effect to the purpose of the human rights legislation at issue.
(d) Difficulties in Practical Application of Employers’ Defences
37 The conventional analysis developed by this Court has also been criticized for drawing difficult distinctions between the elements an employer must establish to rebut a prima facie case of direct discrimination and the elements an employer must establish to rebut a prima facie case of adverse effect discrimination. For example, a distinction has been drawn between the obligation to explore “reasonable alternatives”, applicable to direct discrimination, and the obligation to consider “individual accommodation”, applicable to adverse effect discrimination: see Large, supra, at paras. 30-34, per Sopinka J.
38 In practice, however, there may be little difference between the two defences: see, for example, Canada (Attorney General) v. Levac, [1992] 3 F.C. 463 (C.A.); Large v. Stratford (City) (1992), 92 D.L.R. (4th) 565 (Ont. Div. Ct.), per Campbell J., at pp. 577-79; Saran v. Delta Cedar Products Ltd., [1995] B.C.C.H.R.D. No. 3 (QL); Grismer v. British Columbia (Attorney General) (1994), 25 C.H.R.R. D/296 (B.C.C.H.R.). In Thwaites v. Canada (Armed Forces) (1993), 19 C.H.R.R. D/259 (Can. H.R.T.), it was recognized, at p. D/282, that
[t]he logical conclusion from this analysis is that there is very little, if any, meaningfu