Human Rights in the Work Place: What on earth is a BFOQ?
Akiva Stern, BHRM, MIRHR
Akiva Stern is Sole Proprietor of HR AID. HR AID is an employment consulting company devoted to helping employees and small business owners easily access employment and labour information as well as helping to resolve their employment issues. Akiva is currently enrolled in the JD/MBA program at the University of Windsor.
Human Rights in the workplace is an ever-expanding area of employment law. Unlike the Charter of Rights and Freedoms, which only applies to government entities, The Ontario Human Rights Code (The Code) is a useful tool that can be applied to all employees whether they work in the public or private sector. It is an important aspect of employment law because it protects you from various forms of discrimination in the workplace. Let’s take a closer look…
The Cautionary Tale
Stacy is very excited this morning because she just came back from her honeymoon and is preparing to go to her first job interview today for an executive assistant role at Discriminate-and-how Tech Inc. Stacy graduated at the top of her class and worked at a similar firm for five years. She prepared all morning for her interview and finally set off to meet Jared, the interviewing manager. They sat down together and began the interview. At first, Jared asked all sorts of skill related questions and Stacy was doing very well. After about forty five minutes Jared closed his notebook and smiled, ‘You did very well’ he said, ‘I can see you fitting in very well here!’ Stacy and Jared chatted casually for the next half hour about non-work related things. Jared noticed Stacy’s ring, ‘Oh your married?’ Stacy nodded. ‘Are you planning on having kids soon?’ Stacy got very comfortable in the meeting and didn’t think twice about the question. Stacy began to describe how her and her husband just found out that they were pregnant and how they were looking into white picket fences for the front yard. As soon as Jared heard this he became less friendly and lost his smile. He looked at his watch, thanked Stacy for coming in and ushered her out of the office. Stacy never got a call back.
Key Features of the Human Rights Code
The Code applies to many areas of social activity. Here is the excerpt relating to employment:
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (1); 1999, c. 6, s. 28 (5); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (5); 2012, c. 7, s. 4 (1).
Harassment in employment
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (2); 1999, c. 6, s. 28 (6); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (6); 2012, c. 7, s. 4 (2).
- To infringe any of these categories, it isn’t necessary for someone in the workplace to INTEND to cause discrimination. If the effect of the action discriminates in some way, it may infringe the Code.
- You CANNOT opt out of the provisions of the Code.
- The Remedies (Solutions) that result from the Code pertain to monetary or accommodation related remedies. They do not offer remedies like imprisonment or other criminal related alternatives.
- If a statute conflicts with the Code then the Code will have authority and prevail.
- The Code applies from the beginning of recruitment all the way up to termination.
- You do not need a lawyer to file a complaint.
Types of Employment Discrimination
- place of origin
- ethnic origin
- sexual orientation
- gender identity
- gender expression
- record of offences
- marital status
- family status
This list is neither exhaustive nor absolute. The code provides certain exceptions where an employer is allowed to discriminate. See the Code for more details.
The Exception to the Rule
Generally there are two major points at which an employer can discriminate. The first is right at the outset in the recruiting process, for example writing in a job ad that pregnant women need not apply. This is an explicit infringement on the Code as it discriminates based on family status. An employer can prove that their limitation is justified if the limit is a Bona Fide Occupational Qualification (BFOQ) this means that it is absolutely necessary for this requirement to be in place because of the nature of the job. The employer must prove 3 things to have a justifiable BFOQ:
- The limit has to be rationally connected to the job.
- Adopted in honest belief that it was necessary.
- It is impossible to accommodate without creating undue hardship
So put simply, it has to make sense in the context of the job itself, in good faith, and without any other reasonable alternative.
The second major point at which discrimination occurs is during the employment relationship once a ground is discovered. Once a Ground of discrimination is recognized, the employer has a Duty to Accommodate. This means for example, buying a special chair for someone with back problems. The only way an employer can waive this duty is to prove that it would be too difficult to accommodate the ground. This is called Undue Hardship. This can include reasons like Health & Safety in the workplace or a cost so high it would drastically affect the business.
Once a ground outlined in the code is recognized, the employer has a duty to accommodate and cannot treat you negatively as a result of the discriminated ground. If they do want to justify it they have to prove that accommodating would create undue hardship.
If you feel you are being discriminated against first try and speak to a supervisor or manager to resolve the issue. Many types of accommodation are easily accessible without resorting to any official action. Employers are often happy to accommodate and want to try and preserve your working relationship.
If you feel like you do need to take the next steps, or for more serious claims, you can easily fill out an application and do not need a lawyer to make a claim.
For more information see more here.
For claims in Ontario: Filing Claims of Discrimination, How do I file a discrimination complaint?
*Some exceptions apply; see the Human Rights Code for more details.
**The above is Information regarding Labour and Employment Issues and is not to be considered advice or instructions pertaining to individual or specific employment situations.