3.7 Bona Fide Occupational Requirement (BFOR)

In some cases, workplace discrimination is not unlawful. Suppose organizations can objectively justify using criteria by showing business necessity and job relatedness or by claiming bona fide occupational qualification (BFOQ). In that case, the requirements can be used, even if it leads to discrimination.

Bona fide occupational requirements are a justifiable reason for direct discrimination. The term ‘bona fide’ is a Latin word that means ‘in good faith’ or ‘genuine’. This clause allows organizations to use the prohibited categories to make decisions overtly.

When a person’s disability, gender or other protected attribute prevents him or her from performing a job’s essential duties, refusing to employ that person is not discriminatory. Airlines are allowed to have a mandatory retirement age for pilots for safety reasons. The International Civil Aviation Authority has set the international mandatory retirement age at 65 (age discrimination). However, before judging whether a person can perform the essential requirements of a position, steps must be taken to ensure that all barriers to participation for people protected under human rights law are eliminated from selection, training and promotion standards and practices. Employers must ensure they build accommodation into their policies and practices as far as possible and up to the point of undue hardship (explained below). This is why examples of legitimate BFORs are relatively rare and relate to unique situations. They also raise questions as to which aspects of the job are genuine. Questions like these are often debated in court because they are not black and white.

Duty to Accommodate

The OHRC places an additional responsibility on organizations regarding discrimination: the duty to accommodate. Employers and service providers must adjust rules, policies or practices to enable individuals to participate fully. The duty to accommodate means that sometimes it is necessary to treat someone differently to prevent or reduce discrimination, which is especially true when it comes to physical disabilities. For example, if an employee has a speech impairment, they don’t need to answer the phone. An employer can eliminate this as a duty for the individual; instead, they can do filing for their coworkers.

Another example is an employee who may be absent for a day or two during the week to receive dialysis. An employer can accommodate them by agreeing to a weekly 3-day work contract, or the employee could decide to make up the hours on weekends or work from home. In most cases, the duty to accommodate may require the employer to change or adjust how things are usually done to meet the needs of individuals with disabilities.

At this point, it is essential to note that the duty to accommodate employers is limited. The law stipulates that an employer has to accommodate employees up to the point of undue hardship.

The Code prescribes three considerations when assessing whether an accommodation would cause undue hardship:

• Cost;
• outside sources of funding, if any (an organization must consider any outside sources of funding it can obtain to make the accommodation); and
• health and safety requirements, if any.

Policies and HRM

In addition to complying with the requirements mandated by law, every organization may have their own set of unique policies. These policies can be set to ensure fairness (e.g., vacation policy above and beyond those legally mandated), enhance effectiveness (e.g., internet usage policy), or reinforce the culture (e.g., dress code). Some of the roles of HRM are to identify issues that can be addressed by implementing a policy that addresses a range of topics, i.e., chronic delay to a lack of decorum in meetings. HRM, management and executives are all involved in developing policies. Suppose the HRM professional recognizes the need for a new policy or change. In that case, they will seek opinions on the policy, write it, and then communicate it to employees.

Workplace Harassment

The Occupational Health and Safety Act (OHSA) requires employers to develop policies and programs to prevent and address workplace harassment and violence. As everyone should be able to work in a safe and healthy workplace, HR managers must prepare a harassment policy and maintain a program to implement the policy. The HR manager must also provide information and instructions to workers on the contents of the policy and program.

Workplace harassment may include bullying, intimidating or offensive jokes or innuendos, displaying or circulating offensive pictures or materials, or offensive or intimidating phone calls, emails, or other communications. It also includes workplace sexual harassment, which is emotionally abusive and creates an unhealthy, unproductive atmosphere in the workplace. Sexual harassment, like other forms of harassment, happens across all genders and all sexual orientations.

Examples of sexual harassment

• Invading personal space, asking for hugs or other unwanted physical contact
• Suggestive remarks, sexual jokes or compromising invitations
• Visual displays of sexual or suggestive image

“Discrimination in Organizations” from Human Resources Management – Canadian Edition by Stéphane Brutus and Nora Baronian is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.—Modifications: Used sections Bona Fide Occupational Qualification & Duty to accommodate, edited; Added introduction.