Employer's duty to accommodate.

• Author: McLeod, Shawn

The Alberta Human Rights, Citizenship and Multiculturalism Act (the "Act") states that no employer shall refuse to employ or to continue to employ any person or discriminate against any person with regard to his or her employment because of race, religious beliefs, colour, gender, physical or mental disability, marital status, ancestry, place of origin, family status or source of income.

While the Act prohibits discrimination on these grounds, it gives employers who can prove that the discrimination is based on a bona fide occupational requirement (BFOR) a defense to the employer's otherwise discriminatory conduct. In short, an employer will have a defense to a claim of discrimination if it can prove that it is impossible to accommodate the individual being discriminated against without imposing undue hardship upon the employer.

The Supreme Court of Canada has recently addressed this area in two British Columbia decisions.

In British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.), the Supreme Court clarified the law relating to the employer's `duty to accommodate'.

As a result of an effort to implement standards to ensure that employees or applicants for positions as firefighters were able to safely and efficiently perform the job, the BC government established minimum physical fitness standards for its forest firefighters including a minimum aerobic standard. The claimant, a female firefighter who had in the past performed her work satisfactorily, failed the aerobic test and was dismissed. The employee grieved her dismissal on the basis of discrimination on the basis of sex, relying on provisions of the BC Human Rights Code

The narrow issue was whether the employer had improperly dismissed the employee from her job as a firefighter. The broader issue was whether the aerobic standard unfairly excluded women from forest fighting.

The evidence established that most women have lower aerobic capacity than men and that even with training, most women could not meet the aerobic standard established by the employer. The evidence further established that there was not credible evidence showing that the prescribed aerobic capacity was necessary to satisfactorily perform the work of a firefighter.

The Court then reviewed what a complainant and defendant must establish respectively. The Court stated that the initial burden is on the employee to establish a prima facie...