British Columbia (Public Service Employee Relations Commission) v. BCGSEU
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 Rights and Freedoms.
A three-step test should be adopted for determining whether an employer has established, on a
balance of probabilities, that a prima facie discriminatory standard is a bona fide occupational
requirement (BFOR). First, the employer must show that it adopted the standard for a purpose
rationally connected to the performance of the job. The focu