PSAC-TBS Joint Learning Program
Duty to Accommodate: Building an Inclusive Workplace
Meiorin Decision Summary
British Columbia (Public Service Employee Relations Commission) v.
British Columbia Government and Service Employees’ Union (BCGSEU)
(Supreme Court of Canada) (1999) (a.k.a. Meiorin)
Facts
 Tawney Meiorin worked as a fire fighter for the British Columbia
government. She had been performing satisfactorily as a fire fighter for
three years before the government adopted a new series of fitness tests
for fire fighters.
 Meiorin passed three of the four tests but failed the aerobic capacity
test, a 2.5 km run. She completed her run in 11 minutes, 49.4 seconds
rather than the 11 minutes designated as the standard. As a result, she
was dismissed.
 Meiorin filed a grievance alleging discrimination on the basis of gender.
She argued that the aerobic standard discriminated against women
since most women have a lower aerobic capacity than men, and unlike
men, cannot meet the standard with increased training.
 The British Columbia government argued that the minimum aerobic
standard was a bona fide occupational requirement.
Arbitration Decision
 The grievance arbitrator found that the aerobic capacity test (i.e. the 2.5
km run) was adverse effect discrimination against women. Furthermore,
there was no evidence that the aerobic capacity aspect was necessary
for either men or women to perform the work of a forest firefighter safely
and efficiently.
 He ruled that the government had not met its duty to accommodate Ms.
Meiorin and ordered that she be reinstated and compensated for lost
wages and benefits.
British Columbia Court of Appeal Decision
 The case found its way before the British Columbia Court of Appeal.
This Court held that as long as the standard was necessary to the safe
and efficient performance of the job and was applied through individual
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Duty to Accommodate: Building an Inclusive Workplace
testing, there was no discrimination. It also held that to allow Ms.
Meiorin to succeed would be “reverse discrimination” by setting a lower
standard for women. The Court of Appeal allowed the government’s
appeal and reversed the arbitrator’s decision.
 The Union appealed to the Supreme Court of Canada.
SUPREME COURT OF CANADA DECISION
Unified approach
The Supreme Court of Canada eliminated the traditional approach to
discrimination, which made a distinction between direct and indirect, or
adverse effect discrimination. The Court replaced it with a “unified”
approach. In other words, there is no need to distinguish between direct
and indirect discrimination.
Onus
The Supreme Court affirmed that once a prima facie discrimination has
been proven, the onus shifts to the employer to show that the standard or
policy is a bona fide occupational requirement (whether a job requirement
or a practice is essential).
The Supreme Court struggled with this, and established a test for
determining whether the employer established a valid BFOR.
Three-step test for BFOR
This significant change from past approaches to accommodation is the
three-step test adopted by the Court for determining whether the employer
established, that a prima facie discriminatory standard or policy is BFOR:
1) The employer must show that it adopted the standards for a purpose
that is rationally connected to the function being performed. The focus
should be on the validity of the general purpose and not the validity of
the particular standard (Was the fitness test actually a valid assessment
of someone’s ability to do the job?);
2) The employer must establish that it adopted the standard in an honest
and good faith belief that it was necessary to fulfill that legitimate workrelated purpose (Did they establish this test as a sneaky way to make
sure women would not be hired?); and,
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Duty to Accommodate: Building an Inclusive Workplace
3) The employer must establish that the standard is reasonably necessary
to accomplish its work-related purpose. To show that the standard is
reasonably necessary, it must demonstrate that it is impossible to
accommodate individual employees sharing the characteristics of the
individual without imposing undue hardship upon the employer (So,
could the employer actually say: OK, we know we are discriminating
against women, but honestly, we don’t have a choice? This fitness test
is crucial. If women can’t pass the test, they can’t do the job).
The third step is the core of accommodation. It is here that the concept
of inclusion comes into play. Employers have to prove that their standards,
rules, policies are reasonable necessary for the safe and efficient
performance of the job at issue. This includes proving that it is impossible,
without undue hardship, to accommodate the human rights characteristics
of a group or of an individual.
The Court elaborated on this aspect of the test by indicating that courts
must examine whether the standard itself could be altered so as to be nondiscriminatory as well as whether the individual accommodation to a
standard could be made.
Therefore, the BFOR and duty to accommodate concepts are united. A
BFOR cannot be valid without exhaustion of the duty to accommodate built
into the standard, policy, rule etc.
Application of the three-part test to the facts in Meiorin
 The British Columbia government was able to meet the first two steps of
the test but failed the last step. (So the British Columbia government
was NOT secretly trying to block the hiring of women!) In examining the
third step, the Court held that the employer could not show that the
fitness test was reasonably necessary in order to identify those who
would be able to perform the tasks of a forest fire fighter safely and
efficiently.
 Remember, that Meiorin had successfully performed the job for a threeyear period, yet had failed the standard which had been set based on all
mostly male testing samples.
 The Supreme Court also had words for the developers of the test.
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Duty to Accommodate: Building an Inclusive Workplace
 The Court said that the procedures adopted by the researchers who
developed the standard were flawed because they simply described
the average aerobic capacity of the people already doing the job
(which was a mostly male workforce) without determining whether
this was the minimum level required in order to perform the job safely.
 The standard was also flawed because the researchers did not
determine whether the aerobic capacity of male and female test
subjects varied or related to their ability to perform the job.
 The Court also stated that employers designing workplace standards
have an obligation to be aware of differences between individuals,
and differences that characterize groups of individuals. They must
build concepts of equality into workplace standards. The standard
itself is required to provide for individual accommodation, up to the
point of undue hardship.
 The Court has given extended meaning to the duty to accommodate by
incorporating the idea that standards and policies must be examined to
see if they can be changed to eliminate the discrimination from the
outset and not only when an individual or group has filed a complaint.
Undue Hardship
The Court affirmed that the undue hardship standard is set high. Under
section 15(2) the Canadian Human Rights Act, the factors that may be
considered as contributing to undue hardship are limited to health, safety
and cost. Undue hardship does not mean merely inconvenience.
Summary
 Prior to this decision, the duty to accommodate an employee only arose
when a problem had been identified. For example, in the situation of an
employee who is no longer able to perform the job in the traditional
manner, the employee had an obligation to advise the employer of the
need to be accommodated and the employer had an obligation to
ensure that difficulties arising out of discrimination based on a prohibited
ground were accommodated.
 Because of this decision “Accommodation” now means that all
workplace standards, rules, policies and practices must be proactively
designed to be “inclusive”, to reflect and meet the needs of all segments
of society, short of undue hardship.
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PSAC-TBS Joint Learning Program
Duty to Accommodate: Building an Inclusive Workplace
 The key requirement is for employers to ensure they do not institute
barriers against those segments of society that are not present in the
workplace, due to historic systemic discrimination. The new concept
creates considerable overlap with the purpose of the Employment Equity
Act .
 In addition, individuals whose needs have not been addressed by the
initial pro-active process are entitled to seek further individual
accommodation measures, up to the point of undue hardship.
Here concludes the story of Tawney Meiorin.
You may want to thank Tawney if ever you happen to meet her!
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