...in its O'Malley decision, the Court held that the prohibition of discrimination encompasses indirect, or adverse-effects, discrimination, as well as direct or intentional discrimination...

...the person responsible for the rule or practice has a duty to take "reasonable steps" to accommodate the protected group...

BFOR or BFOQ: there is no duty to accommodate under the Canadian Human Rights Act, once an employer establishes that a workplace rule or requirement is a bona fide occupational qualification or requirement.

As Human Resource Managers, we are bound by the Canadian Human Rightsc Act (CHRA). The CHRA shapes our employment policies, from recruitment and selection to performnce appraisals. However, we are really guided by how the Supreme Court of Canada has interpreted the Act. Since the early 1980's, the Supreme Court's decisions have provided guideposts for how employers and unions ought to use the CHRA.

An early Supreme Court guidepost, was the O'Malley case. In 1985, the Supreme Court of Canada, in its O'Malley decision, held that the prohibition of discrimination encompasses indirect, or adverse-effects, discrimination, as well as direct or intentional discrimination. Thus, in situations where a rule or practice has an adverse impact on members of a protected group, the person responsible for the rule or practice has a duty to take "reasonable steps" to accommodate the protected group up to the point of "undue hardship" -- without undue interference in the operation of a place of business and without undue expense.

In O'Malley, the claim of religious discrimination arose because a retail clerk, who was a Seventh Day Adventist, refused availability for work from sundown Friday to sundown Saturday in order to observe her Sabbath. The discrimination (adverse-effects) resulted from the job requirement that she work two out of three Saturdays. Accommodating her religious requirements would have  necessitated some reasonable effort by the employer. Clearly, from the evidence, there was no attempt to accommodate and the employer essentially lost due to its failure to discharge the onus of proof..

As the accommodation necessary in this case was relatively simple,  the Supreme Court found no reason to enter into a discussion of what constitutes undue hardship. So, while O'Malley helps us in our understanding of how courts will interpret adverse effects discriminations, we are given no guidepost about how far employers may be required to go in order to accommodate employees. The discussion does no help us understand what might be meant by the term "undue hardship".

Some years later (1990), in the Central Alberta Dairy Pool case, the Court began to elaborate the duty to accommodate and the meaning of "undue hardship".

In Bhinder, a case decided at the same time (1985) as O'Malley, the Court had held that there was no duty to accommodate under the Canadian Human Rights Act, once an employer established that a workplace rule or requirement was a bona fide occupational qualification or requirement. The employer was found to have a valid defence to a complaint of religious discrimination by an adherent of the Sikh religion, who refused to wear a hard hat while working as a maintenance electrician because his religion required that he wear a turban. Since there were valid safety reasons for the hard hat requirement, the Court held that the employer had no duty to accommodate Bhinder in some way.

The Bhinder case seemed to provide a defence for workplace rules that impose serious burdens on protected groups, especially those with disabilities and religious minorities. Saskatoon Firefighters and Brossard emphasized that an employer could not satisfy the BFOQ test unless it could be shown that reliance on a suspect criterion (age or civil status in those two cases) was rationally connected to the performance of the particular job at issue. The employer needs to be able to show that a cetain criterion or work rule is absolutely essential to the proper and safe fulfillment of the job's requirements. Further, and perhaps more importantly, the employer needs to show that there is no practical alternative to the use of that work rule or criterion -- for example, individual testing of capacity or a less restrictive method of reaching the same employment objective.

This was perhaps most clearly expressed in British Columbia v. British Columbia Government and Service Employees' Union released in September, 1999. In British Columbia v. British Columbia Government and Service Employees' Union the employer was instructed to revise testing procedures for female forest firefighters.

Bhinder, a split decision, has not been without controversy. For example, Wilson J. held that Bhinder had been wrongly decided, because the Court had applied the BFOQ defence in a case of adverse-effects discrimination, while that defence should only be applied with respect to direct discrimination. However, she further opined:

“I do not find it necessary to provide a comprehensive definition of what constitutes undue hardship but I believe it may be helpful to list some of the factors that may be relevant to such an appraisal. financial cost; disruption of a collective agreement; problems of morale of other employees; interchangeability of work force and facilities. Where safety is at issue, both the magnitude of the risk and the identity of those who bear it are relevant considerations.“

What is interesting in these comments is the fact that the adverse effects versus direct discrimination distinction is revisited in British Columbia v. British Columbia Government and Service Employees' Union (in 1999) with the opinion that perhaps such a distinction is artificial and unnecessary. In British Columbia v. British Columbia Government and Service Employees' Union the Court guides us towards the notion that the bone fide occupational requirement is the only true defense for any sort of discrimination.

The comments of Wilson J. underscore one of the reservations expressed in the British Columbia v. British Columbia Government and Service Employees' Union decision as it pertains to the legal wrangling over whether or not a case represents an example of "direct" or of "adverse effects" discrimination. Prior to British Columbia v. British Columbia Government and Service Employees' Union this categorization essentially determined the remedy -- the BFOR was only appropriate in cases of direct discrimination, whereas accommodation could be required if adverse effects discrimination was found. Since British Columbia v. British Columbia Government and Service Employees' Union this is no longer the case. Since British Columbia v. British Columbia Government and Service Employees' Union, employers must show that discrimination -- all discrimination -- is based on a BFOR.

In Central Alberta Dairy Pool v. Alberta (Human Rights Comm.) as in O'Malley, the issue was religious discrimination, this time arising from the refusal to give an employee in a milk-processing plant a holy day off, which happened to fall on Easter Monday, to allow him to observe the tenets of the World Wide Church of God. Again, there was little discussion of the duty to accommodate, since the Court quickly concluded that the employer could have accommodated this isolated request for a day off, even though Monday was its busiest production day, since the employer routinely handled employee absences, vacations, and emergencies on Mondays.

... trade unions, as well as employers, are bound by the duty to accommodate....

...a collective agreement can not automatically stand in the way of a necessary accommodation...

...the Supreme Court's decisions tend to emphasize equality of opportunity for individuals, rather than equality of results for groups....

...removing unfair and unnecessary barriers to allow individuals access to the workplace in order to demonstrate their capacities...

...where a proposed accommodation would create real health and safety risks for co-workers or the public, the law does not require accommodation...

...often, exempting a complainant from a rule or changing a practice to accommodate that individual creates an impact on other employees...

...some accommodations, such as restrictions on an employee's seniority rights, carry quantifiable costs...

...more controversial are "costs" for other employees which are less tangible, but nevertheless significant...

...in cases of accommodation, it is not just the employer being asked to accommodate, but the other employees whose contractual rights and expectations may be detrimentally affected...

In Renaud, the Supreme Court of Canada revisited the duty to accommodate in a unionized setting. Sopinka J. expressed caution about the criteria of employee morale and disruption of a collective agreement, noting that: “more than minor inconvenience must be shown before the complainant's right to accommodation can be defeated.” For Human Resource Managers, the guidepost provided by the Court suggests that the employer must establish that actual interference with the rights of other employees due to the adoption of the accommodating measures, is not trivial but is, in fact, substantial. Also, for the first time, trade unions, as well as employers, were bound by the duty to accommodate.

A further guidepost for human resource practice is that a collective agreement cannot automatically stand in the way of a necessary accommodation. In fact, a union can be directly responsible if discrimination results from a collective agreement provision. Further, a union can be held directly responsible whether or not the offending clause comes from the union's or the employer's agenda. A union can be bound by a duty to accommodate even if the discrimination resulted from employer action alone, if the union's cooperation became necessary at some point in order to facilitate the employer's reasonable efforts to accommodate. Nonetheless, the employer is expected to canvass methods of accommodation that do not disrupt the collective agreement. The Court was sensitive to the fact that the union has different concerns and functions than the employer; it is a political institution, obliged to represent and reconcile the interests of a number of employees, who often have different needs and aspirations.

According to Sopinka J, for the union, the primary concern with respect to the impact of accommodating measures is not, as in the case of the employer, the expense to or disruption of the business but rather the effect on other employees. That means that it is legitimate for unions to be mindful of the impact of possible accommodation on the accrued contractual rights of other members of the bargaining unit.

In Renaud, a dispute had arisen because the complainant, a Seventh Day Adventist, could not work his regular Friday evening shift as a school custodian due to the religious requirement that he not work between sundown Friday and sundown Saturday. The employer offered to substitute a Sunday to Thursday shift, provided that another employee could be found to work the Friday evening, This proposal was rejected by the union. Other options, such as moving to a job with straight days, were unavailable because the complainant did not have enough seniority to bid for these hours.

The Supreme Court of Canada held that both the employer and the union had violated the duty to accommodate. It was held that the union and employer should have sought a volunteer to work out the accommodation. It was stated that the union had failed to discharge the onus of proving that there would be undue hardship in the accommodation proposed, since no volunteer had been sought. One can only infer that the proposed rearrangement would not be seen as a significant interference with another employee's rights.

So far, the Supreme Court's decisions tend to emphasize equality of opportunity for individuals, rather than equality of results for groups. A regular theme appears to be the importance of removing unfair and unnecessary barriers to allow individuals access to the workplace in order to demonstrate their capacities. Certain characteristics, such as disability, sex or minority status, appear to be more important than others..

The Court accepts that there are costs associated with many accommodations, as well as competing interests, which can legitimately be taken into account in determining whether anti-discrimination law has been infringed. Judicial decisions acknowledge the reality of limited resources and, therefore, the relevance of cost and efficiency in accommodating differences. The Court has also acknowledged the competing interests of other groups to be deserving of some consideration. Where a proposed accommodation would create real health and safety risks for co-workers or the public, the law does not require accommodation.

What is the difference between employee "rights" and employee "interests"?

Renaud addresses this question insofar as it goes beyond a discussion of harm to speak of the need to protect other workers from significant interference with their "rights." By doing so, the decision forces us to consider that the disadvantaged employees has rights (perhaps to accommodation) and that the group of other workers in the enterprise also have rights.

Is it fair to talk of a duality of "rights" in this context? Are we now required to establish some sort of "ranking of rights" -- a rights hierarchy? Does the use of the term “rights of other employees” unfairly tip the balance in an argument about accommodation. That is, does speaking about the “rights” of other employees suggest that other employees' "interests" in preserving the status quo are equivalent in weight to equality seekers' statutory or constitutional "rights" to reasonable accommodation?

The CHRA makes it clear that disadvantaged individuals have rights. What then, is the basis of other employees' "rights"? Perhaps they have contractual rights (through a collective agreement). Perhaps they have prior interests or preferences. The underlying question is: How important are these contractual rights or these interests and preferences relative to the rights of the disadvantaged as articulated in the CHRA?

The answer depends on how one applies theories of equality. Very often, exempting a complainant from a rule or changing a practice to accommodate that individual creates an impact on other employees. In O'Malley, one individual's exemption from a Saturday shift required another employee to fill in. The Courst has accepted cost (financial) as a consideration in limiting the extent to which accommodation can be required by employers or in determining whether a BFOQ exists. What about costs to other employees? The question becomes the extent to which other employees' contractual rights should be a relevant consideration as well.

Some accommodations, such as restrictions on an employee's seniority rights, carry quantifiable costs -- for example, in the lost wages and benefits that would occur by preferring more junior members of designated groups over more senior employees from another group in a layoff or promotion situation. More controversial are "costs" for other employees which are less tangible, but nevertheless significant to them. While the member of a religious minority may have cogent reasons for seeking Saturday as a day off work, other employees, too, may have good reasons for wanting that day free-most obviously, a chance to spend it with family. Clearly, in cases of accommodation, it is not just the employer or the abstract "enterprise" being asked to accommodate, but the other employees whose contractual rights and expectations may be detrimentally affected.

While the courts are sympathetic to issues of relative advantage and disadvantage, they have not indicated that the perspective of the disadvantaged group is the only relevant one. The argument is that, while it is important to be vigilant lest a presumption operate in favour of the status quo, the case can also be made that arguments about advantage and disadvantage require greater sensitivity when the groups under discussion are large and composed of members with a wide range of experiences and characteristics. By considering the impact of accommodation on other workers, the Supreme Court, in cases like Renaud, allows such complexity to be considered. Most importantly, merit continues to be a relevant consideration in the allocation of benefits such as jobs, as is most clearly demonstrated by the BFOQ defence.

Even if one accepts the general proposition that men have been more advantaged than women, subsets of men have faced and continue to face serious disadvantage because of class, educational background, geographic location, and other factors not necessarily recognized by our human rights codes.