After three years of satisfactory employment the claimant was terminated when she failed a new aerobic fitness test...

The Court accepted that, for physiological reasons, women may be adversely affected by the high aerobic standard...

The question... is the aerobic standard defensible as a bona fide occupational requirement?

...the Court applied... a redefinition of the BFOR defence...

...instead of separate arguments for "direct" and the "adverse effects" discrimination cases... consider the question of reasonable accommodation within the BFOR analysis...

...the Court found that meeting the aerobic standard was not necessary to the safe and efficient work of a forest firefighter...

...the test procedures used did not distinguish between male and female test subjects. The average aerobic capacity of the test subjects as a group was identified as the minimum standard.

On September 9, 1999, the Supreme Court of Canada considered the human rights implications of a standard fitness test as it applied to a female firefighter. In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, it ruled that passing the test was not a bona fide occupational requirement ("BFOR") under British Columbia's Human Rights Code. Therefore, it upheld the arbitrator's order reinstating the firefighter.

In its analysis, the Court applied what it called a new "uniform" approach to interpreting human rights legislation which eliminates the distinction between "direct" and "adverse effect" discrimination. The new "uniform" approach appears to be more of a redefinition of the BFOR defence than a fundamentally new way of looking at "what is discrimination". Its primary thrust is to consider the question of reasonable accommodation within the BFOR analysis. This is not particularly new in Ontario where our Human Rights Code expressly provides that a BFOR will only be found where accommodation would result in undue hardship to the employer.

The Court found that the general purpose of the aerobic standard was to identify whether individuals were able to perform the job safely and efficiently. Furthermore, the Court held that this purpose was rationally connected to the performance of the strenuous tasks of a firefighter. Additionally, the government acted honestly and in good faith in adopting the standard.

However, the Court also found that meeting the aerobic standard was not reasonably necessary to the safe and efficient work of a forest firefighter and there was no evidence that the use of a different standard would cause the employer undue hardship. The test was found to be flawed. Males constituted the majority of test subjects and the procedures used did not distinguish between male and female test subjects. The average aerobic capacity of the test subjects as a group was identified as the minimum standard.

The decision underlines the importance of ensuring that all workplace rules, policies or standards which may have a discriminatory impact on any prohibited ground (e.g. sex, disability, religion) must be reasonably related to the job requirements and that reasonable accommodation has been factored into the rules, policies or standards.