Policies that are neutral on their face might still violate human rights laws if they disproportionately affect a group of employees that have a protected characteristic, such as race, religion, sex, marital or family status, etc. For example, requiring all employees to work one Saturday a month might disproportionately affect orthodox Jews who keep the Sabbath. But a policy that affects one group of employees more than another might still be legal if it is what’s known as a “bona fide occupational requirement” (BFOR). Even if a policy is a BFOR, an employer still might have to excuse an employee from complying with it or make some other reasonable “accommodation” up to the point of “undue hardship.”
When does an accommodation cross the line from reasonable to undue hardship? Is the mere loss of revenue on the part of the employer enough? The Human Rights Panel of Alberta recently had to answer that question. Here’s a look at the case and what it means. The case is also relevant outside Alberta because the same principles apply in other parts of Canada.
What Happened: An aesthetician at a salon went on maternity leave to have her third child. It was understood that, she’d resume the same work schedule when she returned from leave—just like she’d done after her first two pregnancies. When the aesthetician returned, the salon told her she had to continue working one three-hour evening shift a week as she’d done before the leave (most of the staff worked two evening shifts). The aesthetician refused because she claimed she was unable to find childcare for a late shift. She was fired and filed a complaint accusing the salon of discrimination based on her family status.
What the Panel Decided: The Panel dismissed the complaint, ruling that it was impossible for the salon to accommodate the aesthetician without undue hardship.
How the Panel Justified the Decision: The Panel said the aesthetician was fired because of her family status—since the reason she couldn’t work at night was that she had children. But if the salon could prove that its evening shift policy was a BFOR, it might not be liable for discrimination. To do so, the salon would have to show that:
- It had adopted the policy for a purpose rationally connected to the performance of the job;
- It had adopted the policy in an honest and good faith belief that it was necessary for the fulfillment of that job-related purpose; and
- The policy was reasonably necessary for the accomplishment of that job-related purpose—that is, that it’s impossible to accommodate employees with children without imposing undue hardship on the salon.
The aesthetician conceded that the salon had satisfied the first two parts of the test but argued that accommodating her wouldn’t impose undue hardship. The salon argued—and the Panel agreed—that because the aesthetician was a great employee, who was frequently requested by clients, her refusal to work at all in the evenings was an undue hardship:
- The salon’s evening hours were its busiest because most clients worked 9 to 5.
- There were certain services, such as electrolysis and Brazilian waxes, that only the aesthetician could provide.
- The aesthetician’s absence at nights during maternity leave had already cost the salon significant financial loss.
So the Panel concluded that the policy requiring employees to work one evening a work was a BFOR and that letting the aesthetician out of the requirement would be not a reasonable accommodation but an undue hardship [Rennie v. Peaches and Cream Skin Care Ltd., AB Human Rights Panel, Dec. 1, 2006].
Proving that an otherwise discriminatory policy is a BFOR is a tall task. But the Rennie case shows that it’s not impossible. Courts and human rights panels recognize that employers have businesses to run. So as long as you can show that a company policy is truly needed for the successful performance of a job function, you stand a good chance of beating a discrimination complaint.