What is a bona fide occupational requirement (BFOR)?
Most human rights legislation and case law refer to this term, which creates an exception to the employer’s duty to accommodate. In other words, an employer must accommodate unless they can establish that the job requirement is a bona fide occupational requirement (BFOR).
A BFOR refers to the essential tasks required to perform a job. Where an employer can establish a particular BFOR, they can exclude certain workers, under certain circumstances, from a job.
The employer is obligated to accommodate to the point of undue hardship before a BFOR defence can be established.
BFORs are not preferences; they are essential to the job. For example, while an employer may prefer workers to have a high school diploma for certain jobs or require them to lift a certain weight by hand, it is not a BFOR unless the employer can demonstrate that the job cannot be done without that qualification. Preferences such as this may have the effect of screening out certain groups of applicants or forcing existing workers out of the workplace unnecessarily.
The Meiorin decision sets out three steps that help determine whether a discriminatory standard is a BFOR:
- Did the employer adopt the standard for a purpose rationally connected to the performance of the job?
- Did the employer adopt the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose?
- Is the standard reasonably necessary to the accomplishment of that legitimate work-related purpose? To show the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees without imposing undue hardship upon the employer.
In Meiorin, the Court suggested the following as important questions to be asked in relation to Step 3:
- Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard?
- If alternative standards were investigated and found to be capable of fulfilling the employer’s purpose, why were they not implemented?
- Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could a standard reflective of group or individual differences and capabilities be established?
- Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose?
- Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies?
- Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles?
This analysis should be considered whenever an employee requests accommodation.