The Evolution of
Workplace Human Rights
A PRACTITIONER’S GUIDE TO THE TOP 10 DEVELOPMENTS IN WORKPLACE
HUMAN RIGHTS OVER THE LAST 25 YEARS
By Janice Rubin and Titus Totan
It is no small feat to identify the most notable developments in
workplace human rights over the last 25 years – there are so
many cases that could be discussed. To narrow down this subjective
list, we focused on the areas of the law that we deal with
every day in our practice as employment lawyers. Ours is not a
particularly academic list – although there is likely some overlap.
Which cases, which concepts, which statutory changes from the
last 25 years do we turn to over and over again?
Here is our top 10 list:
1. Rethinking the Bona Fide Occupational Requirement
British Columbia (Public Service Employee Relations
Commission) v. B.C.G.E.U. 1999 3 SCR 3 (“Meiorin”)
Human rights statutes throughout Canada recognize that bona
fide occupational requirements (“BFOR”) are not discriminatory.
However, the determination as to what constitutes a BFOR fundamentally
shifted in the Meiorin decision, in which a universal
fitness standard for firefighters was challenged as having an adverse
effect on women. In finding the standard to be unjustified,
the Supreme Court developed a test that has become the accepted
approach to the BFOR analysis:
■■ Is the standard rationally connected to the performance of
■■ Was the standard adopted in an honest belief that it is
necessary to the fulfilment of a legitimate work-related
■■ Is the standard reasonably necessary to the accomplishment of
that work-related purpose?
Since the decision in Meiorin, where a standard is prima facie
discriminatory, an employer may justify it only if individual employee
differences have been accommodated to the point of undue
hardship. Meiorin was a game changer. This benchmark case can
be referred to when talking about the process requirements of assessing
accommodation needs of employees.
2. The Competing Rights Assessment
R. v. S. (N.), 2012 SCC 72
The Canada of 2016 has a greater number of identifiable equity
seeking groups. Inevitably, this results in competing rights.
What does an employer do when accommodating one employee
22 ❚ OCTOBER 2016 ❚ HR PROFESSIONAL