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Human Rights and the Meiorin Decision in the Workplace

Discrimination arises when a person is treated differently due to personal characteristics, including age, gender, sexual orientation, religion and handicap. Prior to the decision in British Columbia (P.S.E.R.C.) v. BCGSEU, [1999] 3 S.C.R. 3 ("Meiorin"), the law divided discrimination into two different types;

1) direct; and

2) adverse effect

Direct discrimination arises where it is obvious that a standard is discriminatory. An example of direct discrimination is a men’s club with a "no women allowed" policy. Adverse effect discrimination relates to a rule or standard that does not appear discriminatory on its face, but when it is applied to people who are members of protected groups, the effect is discriminatory. The requirement that police officers be six feet tall is adverse effect discrimination. The rule itself does not say that women cannot be police officers. However, the effect of the requirement is that most women would not qualify for the job of police officer because women do not usually grow to a height of six feet.

Many commentators, including the Courts, believed that the distinction between adverse effect and direct discrimination was an artificial one. In Meiorin, the Supreme Court of Canada said it was time to eliminate the distinction. They acknowledged that employers are sophisticated and well-advised enough to avoid implementing work-place rules that directly discriminate. Accordingly, the Court developed a new method for employers and unions to address discrimination in workplaces regardless of whether the discrimination is direct or adverse effect.

The Court emphasized the new direction in the judicial assessment of discrimination in a case that followed Meiorin. In British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, ("Grismer"), the Court stated:

Meiorin contains a three part test to determine whether an employer can defend a workplace rule or standard by claiming it is "bona fide occupational requirement" ("BFOR"). The test is as follows:

1) Did the employer adopt the standard for a purpose rationally connected to the performance of the job? A very obvious example would be a minimum vision requirement for the driver of a fork lift. Having good vision in both eyes is "rationally connected" to the performance of the job duties because to drive a fork lift safely, you must have the ability to judge depth. You cannot judge depth adequately without sight in both eyes. However, this same sight requirement is not rationally connected to the job duties of a high school custodian, or a teacher.

2) Did the employer adopted this particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work –related purpose?

3) Is the standard reasonably necessary to the accomplishment of that legitimate work-related purpose? To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

Meiorin announced a unified approach to adjudicating discrimination claims under human rights legislation. The distinction between direct and indirect discrimination has been erased. Employers and others governed by human rights legislation are now required in all cases to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics. Such characteristics are frequently based on bias and historical prejudice and cannot form the basis of reasonably necessary standards.

The Court also held that employers must consider accommodation when formulating workplaces rules and standards. Employers are required to look ahead to the differences between people and the possible effects that their rules or standards will have on those protected by human rights legislation. This duty is ongoing, and rules and standards may need to be modified periodically in order to respect diversity;

Unions are obligated, both when bargaining and throughout their relationship with an employer, to ensure that equality and diversity are respected by workplace rules and standards.

Arbitration Decisions Applying Meiorin

1) Cominco Ltd. v. United Steelworkers of America, Local 9705, [2000] B.C.C.A.A.A. No. 62 (Q.L.).

Meiorin was applied in a challenge to an employer’s non-smoking policy. The Employer attempted to ban smoking everywhere on its property. The arbitrator concluded that addiction to nicotine is a disability, and that heavy smokers would need to be accommodated. Arbitrator Larson concluded that the no smoking policy was discriminatory because it had a disproportionate effect on a protected group. Heavy smokers were protected under the Human Rights Code. On the first step of the Meiorin test, he determined that the policy was created for a purpose rationally connected to the job, that is "to improve the health, safety and productivity of employees". On the second step, he determined that the Company indeed had honest and good faith reasons to believe that the policy was necessary to fulfill the work related purpose. On the third step of the test, the arbitrator concluded that the employees who were heavily addicted were entitled to accommodation. It was not undue hardship to permit smoking in some outdoor areas.

Employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. … To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced.

2) Canada Safeway and U.F.C.W., Loc. 401 (2000), 89 L.A.C. (4th) 312 (Oliphant).

This case applies Meiorin to return-to-work accommodation. Oliphant was a cashier who had been on Worker’s Compensation benefits due to a repetitive stress injury. The Company stated that they could not accommodate her, and she could not perform her original duties as cashier. Article 9.11 of the collective agreement included a requirement for accommodation in accordance with the Alberta Human Rights, Citizenship and Multiculturalism Act. The duties included the repetitive hand movements of using the keyboard as well as some repetitive lifting, bending and twisting associated with moving the purchases.

Applying the test in Meiorin, Arbitrator Sims found that the physical requirements for a cashier were rationally connected to the job duties. He also found that the employer adopted them in good faith, thus passing the first two steps of the test. At the third step the employer was unable to demonstrate that the physical requirements were necessary to accomplish a legitimate work-related purpose, as there were other less demanding cashier duties that Oliphant could perform. He emphasizes that Meiorin incorporates a process of accommodation into the parties’ obligations as follows;

In summary, I find the Employer has breached its obligation to Ms. Oliphant under art. 9.11. The Union is correct that this section requires a process. Part of that process is to assess, in consultation with the Union and the employee seeking accommodation, what duties are available, suitable and sufficient. This process must be carried out with the Employer applying a policy towards accommodation that has within it the flexbilities discussed in these reasons.

This decision represents a very thorough application of Meiorin. In particular, it emphasizes that Meiorin contemplates a consultative process of accommodation.

3) Cape Breton Healthcare Complex and Canadian Auto Workers, Local 4600 (2000), 90 L.A.C. (4th) 403.

A blood collector was no longer able to collect blood due to post-traumatic stress reactions arising out of his battle with cancer over a 12-year period. He experienced considerable anxiety and stress, particularly when he tried to draw blood from cancer patients. His doctor had indicated that he was not to do the blood collection anymore.

The Arbitrator concluded that an ability to collect blood was a job requirement that had been adopted in good faith and was rationally connected to the healthcare duties being performed. Therefore, the requirement passed the first two parts of the Meiorin test. The case centered on whether the worker could be accommodated elsewhere in the facility. The Arbitrator makes the following comments about undue hardship:

In considering whether the employer has met their duty to accommodate, I must consider whether they have reached the point of "undue" hardship, or whether other factors exist which would justify them in concluding that their duty has come to an end.

Although the grievor had been offered another job, it was at a lower pay rate, and would still provide too much contact with patients aggravating his mental illness. The arbitrator determined that the employer is obligated to do more than simply consider an employee in need of accommodation for job openings that happen to arise. The employer was required to pay the grievor at his former job rate and to enter into discussions with the Union and grievor with a view to accommodating him properly. The arbitrator mentioned doing a "scan" of the workplace to determine if there were other jobs available, or perhaps removing the blood collection duties from the grievor’s existing job. In any event, the parties were free to return to arbitration for guidance during the process.

4) Ontario Nurses Assn. v. Community Lifecare Inc. (Port Perry) (Clark Grievance), [2001] O.L.A.A. No. 614 (QL)

Clark had returned to work after being diagnosed with a degenerative condition called "facet joint syndrome." Her doctor indicated that she could not lift anything over 20 pounds and she was not to do any repetitive twisting, bending, pushing or pulling.

The grievor was permanently unable to perform her former job duties. These duties included lifting patients and assisting with meals, dressing, exercise and transferring patients in and out of bed. The grievor performed a series of modified duties upon her return, but was soon called into a meeting and informed that her temporary modified duties were ending. The employer took the position that they would not create a position for her.

The Board of Arbitration determined that this response was not in accordance with the principles of Meiorin, and concluded that the modified work program did not go far enough in meeting the standards set by the Supreme Court:

… we are not persuaded that the Meiorin case has expended the concept of accommodation to include the taking of all possible accommodative measures without regard to the costs associated with then and their health and safety implications…. The Employer’s modified work program is an enlightened and constructive method of accommodating employees with temporary partial disabilities…. However, as indicated above, an employer’s duty to accommodate an employee’s handicap extends beyond the provision of short-term light duty work under a work hardening or temporary modified work program. If an employee’s restrictions become permanent, as occurred in the grievor’s case, the employer must duly consider what modified work can be made available on a longer term basis without undue hardship.

The employer had failed to consider the needs of workers who become permanently disabled when it created its modified work policy, and gave no thought at all to accommodating the grievor.

Human Rights Cases Applying Meiorin to the Workplace

5) John Stevenson and C.H.R.C. v. Canadian Security Intelligence Service (CSIS), [2001] C.H.R.D. No. 40 (Q.L.)

Stevenson was a security intelligence officer with CSIS for 23 years. He began to suffer from anxiety and depression in 1997. His supervisors decided to transfer him to Ottawa. Stevenson regarded this as punishment, as he had been in Vancouver for 23 years without incident, and had two children attending the University of British Columbia, as a result, Stevenson’s stress became major depression. He tried to get a stress leave and was denied. CSIS discharged him on the basis that he was unfit according to their Health Evaluation Policy. The Canadian Human Rights Tribunal applied the Meiorin test to this policy.

CSIS claimed the policy was a BFOR based on standards that included: 1) capability to perform the duties expected, 2) prognosis for recovery, and 3) the requirement of mobility. The Tribunal was willing to accept that a policy requiring an employee to be medically fit was rationally connected to the job duties of an intelligence officer. They also accepted that the Health Evaluation policy was adopted in good faith, to ensure the medical fitness of employees in national security.

At the third step of the Meiorin test, the Tribunal concluded that the standard with regard to sick leave was discriminating against the mentally ill, and it was not a BFOR. The Tribunal felt that if Stevenson had cancer, or some other physical ailment, his leave would have been unlimited so long as there was a chance he could some day return. However, because he suffered from mental illness, CSIS had only given him the option of a 6 month leave. The Tribunal determined that CSIS could not have demonstrated undue hardship for allowing Stevenson to take a leave. As a large public sector employer with a huge annual budget, the Tribunal found any claim of financial hardship on the part of CSIS incredible.

6) Mazuelos v. Clark, [2000] B.C.H.R.T.D. No. 1

In this case, a woman (Clark) was found to have discriminated against a live-in nanny (Mazuelos) she had hired, on the basis of pregnancy. Mazuelos had become pregnant immediately before she was to start work taking care of Clark’s "active" young boys. Clark claimed she could not hire Mazuelos because the nausea associated with her pregnancy would prevent her from being able to keep up to the children. Clark was found to have discriminated because she made no attempt at all to accommodate the Complainant.

Meiorin was applied in the context of employment in a private home. The B.C. Tribunal applied Meiorin and determined that Clark had discriminated by not attempting to learn enough about Manzuelo’s condition to even determine if she could accommodate her. In discussing the requirements imposed by Meiorin, the Tribunal stated;

Ms. Clark could have done more than she did to objectively determine Ms. Manzuelos’ present and likely future capacity to perform the job for which she had been hired. Ms. Clark made her determination that Ms. Manzuelos could not meet the standard on the basis of a single conversation… Moreover, I find that it is not reasonable to suggest, as Ms. Clark did in her evidence, that Ms. Manzuelos should have communicated more information about her physical and emotional situation after Ms. Clark had told her she did not have a job.

Employers need ensure that they have enough information before making decisions about accommodation. This is another layer of Meiorin.

7) Pannu v. Skeena Cellulose Inc., [2000] B.C.H.R.T.D. No. 56 (QL)

Darshan Pannu is a Sikh and wears a beard as a tenet of his faith. There is a workplace requirement he be clean shaven. Otherwise, protective equipment he must wear will not seal with his face. Pannu was moved from his job as "recaust operator" to another job in the workplace because he would not remove his beard. The first two steps of the Meiorin test were met as the requirement for the face protection was rationally connected to the job, and the requirement was imposed in good faith. At the third step, the Tribunal found that accommodating Pannu would have amounted to undue hardship:

…I conclude that most adjudicators have found job requirements justified as BFORS if allowing the complainant to perform the job would represent a real and significant increase in the magnitude of risk to the complainant and others. …In this case, the change to risk entailed by accommodating Mr. Pannu includes some increase in the magnitude of risk and, more significantly, a complete shift of that risk away from Mr. Pannu to the Utilityman ... I find that Skeena has established undue hardship on a balance of probabilities.

There is no known respiratory equipment that permits the wearing of a beard and still provides the protection required for long-term gas exposure. The recaust operator, and assistant recaust operator (ARO), were the two most knowledgeable and experienced positions in the workplace. The Utilityman whose job usually permits him to evacuate the area in an emergency, would have to stay behind on Pannu’s shift in order to assist with emergency shut down. This shifted all of the risk in the recaust operator job to anther job entirely, and this is undue hardship.

Expansion of the Enumerated Grounds for Discrimination
Discrimination of the Basis of Sex

1) Vancouver Rape Relief Society v. British Columbia (Human Rights Commission), [2000] B.C.J. No. 1143 (QL),

Recently, in British Columbia, a decision of the British Columbia Supreme Court extended the prohibition of discrimination based on sex to include transsexual persons. This was the first time a court had examined that conclusion, although the British Columbia Human Rights Tribunal had made the finding previously.

This issue arose in connection with a preliminary objection to proceedings before the Human Rights Tribunal by the Vancouver Rape Relief Society. In this case, the Court canvassed the legislation in British Columbia to examine uses of the words "sex" and "gender" to see how they interacted. The following conclusion will be of assistance in the future claims of tanssexual/transgendered persons. The Court states:

In my opinion to limit discrimination of the basis of sex to male/female issues places a far too narrow limit upon the purpose and intent of the 1984 Act and the present Code. …In my view, unless compelled to do so by specific legislative direction of clear evidence to the contrary, it would be wrong to interpret the prohibition against discrimination on the basis of sex in either the 1984 Act of the present Code as not also prohibiting discrimination against an individual merely because that person or group is not readily identifiable as being either male or female.

The Court concluded that the use of the word "sex" in human rights legislation included protection for transsexual persons.

2) Brooks v. Canada Safeway Ltd. (1989), 59 D.L.R. (4th) 321

The Supreme Court of Canada here that discrimination on the basis of pregnancy is discrimination on the basis of sex. The Court stated:

Combining paid work with motherhood and accommodating the child bearing needs of working women are ever-increasing imperatives. That those who bear children and benefit society as a whole thereby should not be economically or socially disadvantaged seems to bespeak the obvious. …It is difficult to conceive that distinctions or discriminations based upon pregnancy could ever be regarded as other than discrimination based upon sex, or that restrictive statutory conditions applicable only to pregnant women did not discriminate against them as women.

3) Hamilton-Wentworth District School Board and O.S.S.T.F. (Chaikoff) (2000), 89 L.A.C. (4th) 194

An Ontario Board of Arbitration, relying on Brooks, expanded the definition of sick leave in a collective agreement to include the six-week period following child birth traditionally recommended by doctors. Typically, sick pay provisions do not cover the portion of time that a woman may be "recovering" from childbirth. This time is usually taken as maternity leave, which may not be a leave paid by the employer. In this case, the provisions for sick leave and sick pay in the collective agreement covered "personal illness or injury" as opposed to the more commonly used "disability". The Board of Arbitration relied on the language in Brooks and determined that although not technically sick, the women had a valid "health related reason" for being away from work as a result of their pregnancy. The six-week post partum period. They were thus eligible for sick pay during this period.

4) Carewest v. Health Sciences Association of Alberta (Degagne Grievance), [2001] A.G.A.A. No. 2

In Alberta, an Arbitrator has found that discrimination because a woman is breast-feeding is discrimination on the basis of sex. The grievor’s baby was breast-feeding on demand every three hours or so. The grievor could not return to work and leave her daughter in day care because she would not be able to breast feed her there. The employer terminated her and said breast feeding was a matter of "personal choice." Relying on Brooks, supra, the arbitrator had little trouble extending discrimination on the basis of sex to cover discrimination on the basis of breast-feeding;

The changes that a woman undergoes that allow her to breast-feed her child are unique to the female gender. … Breast-feeding in my view is as intimately connected to child birth as pregnancy is to child birth and should be safe-guarded in the same way. ... discrimination on the basis that a woman is breast-feeding is a form of sex discrimination."

The grievor was reinstated.

Family status

As a result of the Supreme Court of Canada decisions in M. v. H., [1999] 2 S.C.R. 3 and Vriend, [1998] 1 S.C.R. 493, provinces and the federal government must afford protection on the basis of sexual orientation and provide family benefits to same sex couples as well. As we see below, the definition of family status continues to expand.

5) Ontario Human Rights Commission v. Mr. A et al. [2000] O.J. No. 4275 (Q.L.)

The Ontario Court of Appeal decided to include discrimination on the basis of the identity of other family members and discrimination on the basis of the identity of one’s spouse under the protection of the Human Rights Code.

Mr. A was four years away from a full pension after 26 years with the same employer. He was dismissed after his wife and daughter accused his Employer of sexually assaulting the daughter. He alleged that this termination resulted from discrimination because of family status. His position was that he was fired only because he was married to his wife, and the father of his daughter, who were making serious allegations against his employer.

This case raises interesting questions with regard to anti-nepotism hiring policies of employers. As people spend more and more time at work, prohibitions on relationships with others from the workplace may be called into question.

Religion Non-Christian Holidays

6) Commission Scolaire regionale de Chambly v. Beregevin (1994), 115 D.L.R. (4th) 609 ("Chambly")

This Supreme Court of Canada decision in deals with religious observances of people who are not Christians. The Court made the following comments:

Once it has been established that there is adverse effect discrimination flowing from employment rules, procedures or standards, then there must be a duty resting upon an employer to take reasonable steps to accommodate those employees that are adversely affected by the employment rules.

This case was prior to Meiorin, but is still the leading case with respect to the accommodation of diverse religions. The Commission Scolaire was required to pay teachers of the Jewish faith for their absence on Yom Kippur, their highest holiday.

Non-mainstream Christian Religions

7) Ontario (Ministry of Community and Social Services) v. O.P.S.E.U., (2000) O.R. (3d) 560, (Q.L.)

Tratnyk was a member of the Worldwide Church of God and had to observe 11 holy days through the year. The employer’s policy only permitted two days off with pay for religious observance. Tratnyk claimed that the social contract days, and the banked time that the employer had told him to use, were his to use as he pleased and he should not have to use them for religious observance. Utilizing the Meiorin test, the Court held that the use of his banked time was adequate accommodation under the circumstances;

… the compressed work week option is an accommodation mechanism that forms an integral part of the policy. Properly characterized, it is a full-time scheduling alternative provided for in the collective agreement available to employees like Mr. Tratnyk who require more than two days off from work to fulfill their religious commitments. …it enables employees to observe their religious holy days without loss of pay and without having to encroach on pre-existing earned entitlements, while at the same time completing their assigned hours of work, thereby relieving the employer for having to pay them on days for which they provide no service.

The court felt that so long as employees were not being forced to use their earned entitlements such as vacation days for religious observance, the accommodation was acceptable and could pass the Meiorin test.

8) Jones v. Eisler, [2001] B.C.H.R.T.D. No. 1 (Q.L.)

Jones was dismissed because he refused to put out Christmas decorations. They were against the tenets of his faith as a Jehovah’s Witness. He was willing to stock Christmas merchandise, but he told the manager he would be unable to decorate. At some point near Christmas, he was forced to decorate by the store owner. He was terminated when he refused. Arbitrator Patch determined that Jones was forced to choose between his job and his faith when Eisler told him he would have to decorate or leave his employment. Eisler had discriminated against him with respect to a term or condition of employment contrary to s. 13 of the B.C. Human Rights Code. He was compensated for his lost wages.