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BCGSEU v BCPSERC (Meiorin Case) - case brief.docx

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University of British Columbia
COMM 393
Patricia Mallia

BCPSERC v. BCGSEU (Meiorin Case) JUDICIAL HISTORY - 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 reversed this decision. - The Supreme Court of Canada allowed an appeal and restored the arbitrator’s decision. Ms. Meiorin is entitled to return to her former position and her compensation to lost wages and benefits. FACTS - 1992, claimant Tawney Meiorin was employed by British Columbia Ministry of Forests as a forest firefighter. She was a member of a three-person Initial Attack Forest Firefighting crew. - She performed her job well for 3 years; - in 1994, asked to take the fitness test that had 4 components; known as the “Bona Fide Occupational Fitness Tests and Standards for B.C. Forest Service Wildland Firefighters.” - she passed first 3 but failed the fourth test four times and was dismissed. The fourth component is an aerobic test; she took 49 seconds longer than required. - Her union brought a grievance on her behalf to the arbitrators (Human Rights Commission) - Accepted evidence: o Due to physiological differences, most women have lower aerobic capacity than most men; and most women, unlike men, are unable to increase aerobic capacity through training to meet the standard o No credible evidence shown by defendant: that the prescribed aerobic capacity was necessary for either men/women to do the job safely and efficiently ISSUES 1. Specific issue - did the Government improperly dismissed the claimant (Ms. Meiorin)? 2. Legal issue - was the aerobic standard that led to her dismissal a BFOR; did it unfairly exclude women from forest firefighting jobs LAW AND APPLICATION Statutory Provision in Question: Section 13 (1) (4) of BC Human Rights Code: A person must not: refuse to employ or refuse to continue to employ a person or discriminate against a person regarding employment or any term or condition of employment: Because of race, color, ancestry, place or origin… Subsections 1 &2 does not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement. If the griever successfully establishes a prima facie case of discrimination, then the burden of proof shifts to the defendant to prove that the standard in question is a Bona Fide Occupational requirement. Once defendant can demonstrate the discriminatory act/policy is BFOR, it is can use s.13(4) to exempt itself from prohibition of discrimination outlined in s.13(1)(b). To prove the policy is BFOR, prior to Meiorin Case, court will classify discrimination as either over or covert. The classification leads to different remedies and impact on the impinged policy. In Meiorin Case, Supreme Court was invited to review the bifurcated method of analysis and decided to adopt a unified approach, listing out 7 major reasons why the old method needed change. Old bifurcated approach: Require tribunals to classify case into which of two categories: 1) Direct discrimination: standard is discriminatory on its face o Employer may establish standard is BFOR by demonstrating 1. Standard was imposed honestly and in good faith 2. Standard is reasonably necessary to safe and efficient performance of job & does not place unreasonable burden on whom it applies o If not justified, standard is struck down 2) Adverse effect discrimination: facially neutral standard that discriminates in effect o Employer only need to show 3. There is a rational connection between job and the standard 4. Employer cannot further accommodate claimant without incurring undue hardship o If not justified, claimant succeeds, but standard remains intact 7 reasons why the conventional approach should be changed: 1. Artificiality of distinction between direct and adverse effect 2. Different remedies depending on method being classified 3. Questionable assumption that adversely affected group is always a numerical minority 4. Difficulties in practical application of employer’s defences 5. Legitimizing systemic discrimination 6. Dissonance between conventional analysis and express purpose and terms of human rights code 7. Dissonance between human rights analysis and Charter Analysis NEW Three-step Test (unified approach) Here, the employer must satisfy the following three-step test to establish, on a balance of probabilities, that the standard is a Bona Fide Occupational requirement - that is, to establish a defence against the case of discrimination. 1. Validity of General Purpose -The employer must show that it adopted the standard for a purpose rationally connected to the performance of the job. The focus at the first step is not on the validity of the particular standard, but rather on the validity of its more general purpose. What is the st
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