An employer can justify the impugned standard by establishing on the
balance of probabilities: • that the employer adopted the standard for a purpose
rationally connected to the performance of the job; • that the employer adopted the particular standard in an
honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and • that the standard was
reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to
accommodate individual employees sharing the characteristics of the claimant without imposing
undue hardship upon the employer. :(per McLachlin, emphasis added)
Rational connection In practice, this step has been shown to be easily satisfied. It is mostly used to motivate the parties to identify what the general purpose or goal of the standard is, and will only fail in the most egregious cases. This step has a close connection to the "rational connection" inquiry within the
Oakes test which has been shown to have similar effect.
Good faith This step addresses the subjective element of test. Though it is not essential to the determination of a BFOR it captures many "direct discrimination" cases.
Undue hardship This step is the most decisive of them all. It must show that reasonable alternatives and accommodations have been looked into and reasonably dismissed due to
undue hardship. Sopinka J, in
Central Okanagan School District No 23 v Renaud [1992] 2 SCR 970, stated, "[T]he use of the term 'undue' infers that some hardship is acceptable; it is only 'undue' hardship that satisfies this test." The exact measurement of undue hardship is the combination of a variety of factors. Wilson J identified several in
Alberta Dairy Pool including financial costs of accommodations, interchangeability of the workforce and facilities, and the interference of other employees rights. At paragraph 65 of
Meiorin, McLachlin J suggests six lines of inquiry to consider: • Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individually sensitive standard? • If alternative standards were investigated and found to be capable of fulfilling the employer's purpose, why were they not implemented? • Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established? • Is there a way to do the job that is less discriminatory while still accomplishing the employer's legitimate purpose? • Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies? • Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles? As Sopinka J. noted in Renaud, supra, at pp. 992–96, the task of determining how to accommodate individual differences may also place burdens on the employee and, if there is a collective agreement, a union. ==See also==