Did you know that employers are legally permitted to engage in discriminatory practices? As shocking as this may seem, in some very specific circumstances employers are legally allowed to breach human rights laws.
Provincially regulated employees in Ontario enjoy the protections granted by the Human Rights Code. Among other things, these include equal treatment in employment based on race, gender, sexual orientation, age, disability, and family status.
Notwithstanding these protections, it is recognized that in some situations employers have a right to discriminate. Indeed, they can adopt discriminatory practices if there is a bona fide occupational requirement.
A bona fide occupational requirement is a standard or rule that is necessary for the efficient and proper performance of a certain job. This standard or rule will not be viewed as illegal even if it has a discriminatory effect on employees.
A company will not be found guilty of discrimination if:
- The standard/rule was adopted for a purpose or goal that is rationally connected to the performance of the job;
- The standard/rule was adopted in an honest and good faith belief that it is necessary to the fulfillment of that legitimate work-related purpose; and
- The standard/rule is reasonably necessary to the accomplishment of that legitimate work-related purpose.
Many bona fide occupational requirements are related to health and safety. For example, if a person’s religion requires them to wear a certain piece of clothing that could pose a risk to their safety in the workplace, the employer may have the legal right to prohibit it.
This is precisely what happened in Canadian National Railway Co. v. Canada (Human Rights Comm.) and Bhinder. In that case, the Supreme Court of Canada ruled that CN Rail had not engaged in discrimination when it fired one of its employees, a member of the Sikh religion, for refusing to wear a hard hat instead of a turban. The Supreme Court of Canada affirmed that there is no duty to accommodate an employee based on protected grounds if there is a legitimate bona fide occupational requirement. In that case, it was found that the employer’s standard/rule requiring staff to wear protective equipment on the job was necessary to ensure their safety.
Whether or not a workplace standard/rule constitutes a bona fide occupational requirement isn’t always clear. If you are uncertain, rather than potentially compromising your relationship with your employer we encourage you to review your matter with an experienced employment lawyer specializing in human rights laws.
Singh Lamarche LLP has a team of lawyers ready to provide advice and guidance on all matters related to employment, including human rights.