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Bona Fide or Not? How to Create Legally Compliant Job Descriptions

August 10, 2017

Your company needs to post a job which may require occasional driving. It seems logical enough that you would include “must possess a valid driver’s licence” under requirements, right? Well, you could be treading into some murky HR waters. Is the requirement bona fide, what does this mean, and why is it important to your business? In HR speak, a BFOR (or bona fide occupational requirement) is a qualification or requirement that is absolutely necessary for the proper or efficient performance of a job. BFORs are contained in job descriptions and detail the essential qualifications required of your employees.

The definition of a BFOR sounds straightforward. So why are BFORs such a big deal? The central issue with BFORs is that they are legitimately used in some circumstances to justify discrimination in employment practices. In some instances, discrimination regarding employment practices is justified under Canadian human rights legislation. However, an occupational requirement that results in discrimination can only be justified if it is absolutely necessary in order to perform the job and can’t be avoided.

The primary challenge BFORs pose for employers is that it can be difficult to determine whether a BFOR is legally justifiable or not. Mistakenly using a requirement that does not qualify as a BFOR, and breaching human rights legislation, can have substantial repercussions for your business, including reinstating a fired employee, paying legal fees and lost wages, and compensating the employee for injury to feelings, dignity, or self-respect. In addition, fines may be levied against the employer.

In 2016, the Canadian Human Rights Commission received 1,394 human rights complaints related to employment, which accounted for 64% of all complaints. Here are the maximum fines for breaching human rights legislation in various jurisdictions:

  • Federal: no maximum
  • Alberta: no maximum
  • British Columbia: no maximum (one of the highest fines to date is $35,000)
  • Manitoba: $25,000
  • Ontario: $25,000
  • Saskatchewan: $20,000

Luckily for employers in Canada, the landmark Meiorin case clarified what constitutes a legitimate BFOR. Tawney Meiorin, a female forest firefighter who had successfully performed the duties of her job for three years, was dismissed after she failed a new fitness test introduced by her employer. Meiorin alleged that the test of physical ability, characterized as a BFOR by her employer, was discriminatory. After Meiorin’s case made its way through lower courts, the Supreme Court of Canada determined that the fitness test unfairly discriminated against females, and that the requirement to pass the test could not be considered a BFOR. In its ruling, the Supreme Court established a three-step test to determine whether or not a discriminatory standard is a BFOR. Using legally defensible BFORs will improve your ability to recruit and select qualified applicants, while avoiding workplace discrimination and the negative repercussions of human rights violations.

Determining what qualifies as a BFOR can be challenging. Download our FREE Job Description Compliance Guide, which covers the three-step test and can help you develop job descriptions that are legally compliant with Canadian human rights legislation.

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