Putting Out Another Fire: Fighting Unintentional Discrimination

Golden Forest District
British Columbia
September 9,1999

How times have changed. Our first time shift took us to an era when people were blatantly discriminated against because of their race, or sex, or ethnic origin. That kind of discrimination is easy to recognize and rectify at the dawn of the new millennium. Still, the nuances of indirect discrimination continue to challenge our judicial system.

For example, imagine the following:

You're a man that has had a very successful career as a lifeguard.Suddenly you're required to take a test that measures your fat to muscle ratio. Why? Your employer believes you need a good amount of fat to stay warm in the water during rescues. Since males have lower fat levels than females, you fail the test and lose your job to a woman. Is this fair? Fortunately for you, the story was pure fiction.

Unfortunately for Tawney Meiorin, a similar story wasn't fictional. She was hired as a forest firefighter by the Province of British Columbia. She did her work well until three years later when the province adopted a new series of fitness tests for forest firefighters. She passed three of the tests but failed the fourth one, a 2.5 kilometre run designed to test her aerobic fitness. Since her aerobic fitness fell below the minimum standard, Tawney Meiorin was fired. Tawney felt the test discriminated against women. How? Women have a lower aerobic capacity than most men and cannot increase their capacity - even with ample training - enough to meet the standard.

Tawney brought her case to court where the question became,"Is the aerobics standard a bona fides occupational requirement (BFOR) for being a firefighter?"

The Supreme Court of Canada decided unanimously that the aerobics standard was not a valid BFOR. In so doing, the court set out a new three step test that determines whether an employment rule qualifies as a BFOR or not. Step 1: An employer has to show that it adopts a rule or standard for a purpose that is rationally connected to performance of the job.

A requirement that all firefighters have green eyes doesn't meet the test. There's no rational connection between having green eyes and being able to do the job. But saying that forest firefighters have to be very fit makes sense. Establishing an aerobic standard to measure that fitness is rational. The province's tests passed the first step. Step 2: An employer must establish that it adopted the rule or standard in an honest and good faith belief that it was necessary to carry out that purpose. If there's any hint that an employer created a rule or standard to discriminate, or for some ulterior motive, then the rule or standard is invalid.

Here, the evidence suggested that the province only brought in the rule to ensure that its forest firefighters were able to do a good job. The province's tests passed the second step. Step 3: An employer must establish that the rule or standard is reasonably necessary to accomplish that legitimate work related purpose. The employer has to show that it cannot accommodate individual employees who are negatively affected by the rule without imposing undue hardship upon the employer.

The court didn't see evidence that the aerobic standard was actually necessary. Firefighters that didn't meet the standard, had still managed to perform effectively in the past. The province's aerobic test was only effective in measuring a subject's aerobic capacity - not their capacity to fight fires. (It also didn't take into account that men and women might need different minimum levels of aerobic capacity to do the job well.) The province's tests failed the third step.

In the end, Tawney got her job back, and discrimination was once again vanquished in Canada - a free and democratic society.

Déjà vu

Ontario (Human Rights Commission) v. Etobicoke (Borough)
Ontario (Human Rights Commission) v. Simpsons Sears Ltd.
Bhinder v. CNR
Brossard (Town) v. Québec (Commission des droits de la personne)

Want To Know More?

See:
British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.)