HUMAN RIGHTS LAWYER

​Types of Discrimination

There are three types of discrimination that employers and employees may come across. These are direct, adverse effect and systemic. Direct discrimination occurs when a person is disadvantaged on the basis of an explicit reference to group affiliation. For example, if a “help wanted” sign said that only males need apply, this would be direct discrimination on the basis of gender. Adverse effect discrimination occurs when a seemingly neutral rule or policy has a discriminatory effect on members of a certain group. For example, minimum height requirements for airline pilots constituted adverse effect discrimination against women. Lastly, systemic discrimination concerns overlapping and interconnected rules, practices and assumptions that combine to produce a discriminatory effect.

Discrimination: The Bona Fide Occupational Requirement or Qualification (BFORQ) Defence

Employees who believe they have been discriminated against contrary to the Ontario Human Rights Code should keep in mind the Bona Fide Occupational Requirement or Qualification Defence. This is the most important statutory defence to discrimination. The purpose of the defence is to excuse discrimination when it is done in good faith and for a legitimate business reason.

According to the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, there is a three-step test which must be satisfied in order for a discriminatory workplace standard to be a bona fide occupational requirement:

1. that the employer adopted the standard for a purpose rationally connected to the performance of the job;
2. that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
3. that the standard is 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.