Bona Fide Occupational Requirement in Ontario: What is it?

In Ontario, workplaces are governed by robust human rights laws. However, there are situations where job requirements that seem discriminatory are actually permissible under the concept of a “bona fide occupational requirement” (BFOR).

What is a Bona Fide Occupational Requirement in Ontario?

A BFOR is a necessary condition or standard essential for performing a job. For instance, a construction worker in Ontario might be required to lift heavy weights. While this could be challenging for some individuals due to factors like age or disability, if the employer can demonstrate that this requirement is crucial for the job and making adjustments would cause undue hardship, it is legally acceptable.

The Role of BFOR in Employment Law

BFOR plays a significant role in resolving discrimination cases. Employees who feel they’ve been treated unfairly due to characteristics like gender or disability must first establish their case. If successful, the employer must then justify their actions by proving that the contested requirement is a BFOR necessary for the job.

Assessing BFOR Validity

Ontario uses a three-part test to assess whether a BFOR is necessary:

• Rational Connection: The requirement must be directly related to performing the job.
• Good Faith: The employer must genuinely believe that the requirement is necessary.
• Necessity: The requirement is essential, and accommodating changes would cause undue hardship, considering factors like cost and safety.

Determining ‘Undue Hardship’

In Ontario, ‘undue hardship’ means the limit of how much an employer can adjust job conditions to accommodate employees. Factors like excessive costs and health and safety risks influence this. The employer must provide strong evidence to support their claim of undue hardship.

Termination and severance pay

If an employee can’t meet a BFOR and accommodating them would result in undue hardship for the employer, termination might be justifiable. However, it’s essential to ensure that claims of undue hardship are legitimate. In Ontario, employees terminated without cause are entitled to a full severance package, which could be up to 24 months’ pay.

Before accepting any severance offer, it’s crucial to have it reviewed by an experienced employment lawyer at Samfiru Tumarkin LLP to ensure you receive the full compensation you deserve.

LEARN MORE
• What is wrongful dismissal in Ontario?
• Should I negotiate my own severance package? (Ontario)

However, it’s crucial to note that many employers might claim ‘undue hardship’ without it truly meeting the legal criteria. If an employer terminates an employee under this pretense, it could constitute a violation of the employee’s human rights.

Lost your job? Speak with an employment lawyer

If you are fired or lose your job due to undue hardship, a BFOR, or for any reason, contact the experienced employment law team at Samfiru Tumarkin LLP.

Our lawyers in Ontario, Alberta, and B.C. have helped tens of thousands of non-unionized individuals resolve their workplace issues.

We can review your situation, enforce your rights, and ensure that you receive the compensation you are owed.