British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (1999)

Extract

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British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 (1999)

British Columbia (Public Service Employee Relations Commission) v.

BCGSEU, [1999] 3 S.C.R. 3

The British Columbia Government and Service

Employees' Union Appellant v.

The Government of the Province of British Columbia as represented by the Public Service Employee

Relations Commission Respondent and

The British Columbia Human Rights Commission,

the Women's Legal Education and Action Fund,

the DisAbled Women's Network of Canada and the Canadian Labour Congress Interveners

Indexed as: British Columbia (Public Service Employee Relations Commission) v. BCGSEU

File No.: 26274.

1999: February 22; 1999: September 9.

Present: Lamer C.J. and L'Heureux-Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for british columbia

Civil rights -- Sex -- Employment -- Adverse effect discrimination -- Forest firefighters -- Women having more difficulty passing fitness test owing to physiological differences -- Whether fitness test a bona fide occupational requirement -- Test to be applied -- Human Rights Code, R.S.B.C. 1996, c. 210, s. 13(1)(a), (b), (4).

The British Columbia government established minimum physical fitness standards for its forest firefighters. One of the standards was an aerobic standard. The claimant, a female firefighter who had in the past performed her work satisfactorily, failed to meet the aerobic standard after four attempts and was dismissed. The claimant's union brought a grievance on her behalf.

Evidence accepted by the arbitrator designated to hear the grievance demonstrated that, owing to physiological differences, most women have a lower aerobic capacity than most men and that, unlike most men, most women cannot increase their aerobic capacity enough with training to meet the aerobic standard. No credible evidence showed that the prescribed aerobic capacity was necessary for either men or women to perform the work of a forest firefighter safely and efficiently. The arbitrator found that the claimant had established a prima facie case of adverse effect discrimination and that the Government had not discharged its burden of showing that it had accommodated the claimant to the point of undue hardship. The Court of Appeal allowed an appeal from that decision. The narrow issue here was whether the Government improperly dismissed the claimant. The broader legal issue, however, was whether the aerobic standard that led to her dismissal unfairly excluded women from forest firefighting jobs.

Held: The appeal should be allowed.

The conventional approach of categorizing discrimination as "direct" or "adverse effect" discrimination should be replaced by a unified approach for several reasons. First, the distinction between a standard that is discriminatory on its face and a neutral standard that is discriminatory in its effect is difficult to justify: few cases can be so neatly characterized. Second, it is disconcerting that different remedies are available depending on the stream into which a malleable initial inquiry shunts the analysis. Third, the assumption that leaving an ostensibly neutral standard in place is appropriate so long as its adverse effects are felt only by a numerical minority is questionable: the standard itself is discriminatory because it treats some individuals differently from others on the basis of a prohibited ground, the size of the "affected group" is easily manipulable, and the affected group can actually constitute a majority of the workforce. Fourth, the distinctions between the elements an employer must establish to rebut a prima facie case of direct or adverse effect discrimination are difficult to apply in practice. Fifth, the conventional analysis may serve to legitimize systemic discrimination. Sixth, a bifurcated approach may compromise both the broad purposes and the specific terms of the Human Rights Code. Finally, the focus by the conventional analysis on the mode of discrimination differs in substance from the approach taken to s. 15(1) of the Canadian Charter of ...

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