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Difference between revisions of "BC Human Rights Code (6:III)"
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With respect to physical disability, the B.C. Court of Appeal has recently ruled that an employer is not guilty of discrimination if he or she dismisses an employee for misconduct (e.g. theft in the workplace) that would independently justify dismissal, even if that employee’s drug or alcohol dependency was a contributing factor to the misconduct; see ''British Columbia (Public Service Agency) v British Columbia Government and Service Employees Union'', 2008 BCCA 357 at para 11-18. The critical question is whether the employer’s decision was influenced by the employee’s protected characteristic, or whether instead, the employer would have reached the same decision respecting any other employee guilty of the same misconduct. | With respect to physical disability, the B.C. Court of Appeal has recently ruled that an employer is not guilty of discrimination if he or she dismisses an employee for misconduct (e.g. theft in the workplace) that would independently justify dismissal, even if that employee’s drug or alcohol dependency was a contributing factor to the misconduct; see ''British Columbia (Public Service Agency) v British Columbia Government and Service Employees Union'', 2008 BCCA 357 at para 11-18. The critical question is whether the employer’s decision was influenced by the employee’s protected characteristic, or whether instead, the employer would have reached the same decision respecting any other employee guilty of the same misconduct. | ||
Bona | '''Bona Fide Occupational Requirement:''' In the case of discrimination on the basis of disability, Section 13(4) permits discrimination in employment if the basis for discrimination concerns a “''bona fide'' occupational requirement” (BFOR). In ''British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees' Union'', (1999) 35 CHRR d/257 at para 54 (“Meiorin”), the Supreme Court of Canada established a three-part test for BFOR. An initial investigation determines whether the standard, policy or practice has the direct or indirect effect of excluding or negatively affecting individuals protected by the ''HRC''. The onus of establishing sufficient evidence of a prima facie case lies with the complainant. | ||
p6- | In order to establish a ''prima facie'' case the complainant must introduce evidence which, on its face, satisfies the following three elements: | ||
#The complainant must establish that they are a member of a protected group. | |||
#They must establish that they suffered adverse treatment. | |||
#They must establish a nexus or connection between their protected status and the adverse treatment. It is important to note that a complainant need not establish that their membership in a protected group was the sole or primary reason for their adverse treatment. It is sufficient to establish that it was a reason for their adverse treatment. | |||
Once this evidence is established, the onus of proving a BFOR defence is transferred to the respondent. The respondent must justify the standard by satisfying three elements: | |||
#The fundamental purpose of the standard must be rationally connected to the performance of the job. | |||
#The standard must have been adopted in good faith and with the legitimate belief that it is necessary in order to satisfactorily and safely perform all job related tasks. | |||
#The standard is reasonably necessary to performing the job and it is impossible to accommodate the specific claims of the plaintiff without incurring undue hardship to the employer. | |||
For a specific example of a BCHRT case that applies the BFOR test in a disability context, please refer to ''Kerr v Boehringer Ingelheim (Canada) (No 4)'', 2009 BCHRT 196. | |||
What may be considered as “undue hardship” varies by employer depending on the circumstances. In ''Central Okanagan School District No 23 v Renaud'', [1992] 2 SCR 970 at para | |||
p6-8 | |||
