There may be circumstances where a decision, policy, practice or process results in discrimination based on pregnancy, but is nonetheless justified because it is reasonable and bona fide (legitimate) in the circumstances. The Supreme Court of Canada has set out a framework for examining whether a bona fide requirement has been shown. If prima facie discrimination is found to exist, the organization must establish on a balance of probabilities that the standard, factor, requirement or rule:
- Was adopted for a purpose or goal that is rationally connected to the function being performed
- Was adopted in good faith, in the belief that it is necessary to fulfill the purpose or goal, and
- Is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.
As a result of this test, the rule or standard itself must be inclusive and must accommodate individual differences up to the point of undue hardship rather than maintaining discriminatory standards and accommodating people who cannot meet them. This ensures that each person is assessed according to his or her own personal abilities instead of being judged against presumed group characteristics.
The ultimate issue is whether the person responsible for accommodation has shown that accommodation has been provided up to the point of undue hardship.
The following non-exhaustive factors should be considered:
- Whether the person responsible for accommodation investigated alternative approaches that do not have a discriminatory effect
- Reasons why viable alternatives were not implemented
- Ability to have differing standards that reflect group or individual differences and capabilities
- Whether persons responsible for accommodation can meet their legitimate objectives in a less discriminatory way
- Whether the standard is properly designed to ensure the desired qualification is met without placing undue burden on the people it applies to
- Whether other parties who are obliged to assist in the search for accommodation have fulfilled their roles.
Example: A pregnant woman who cleaned houses requested accommodation from her employer because she found it hard to clean floors and bathtubs on her hands and knees. Although her employer accommodated her on one occasion, it took the position that if her pregnancy prevented her from cleaning on her hands and knees, she would be unable to continue working in the future. Despite receiving doctors’ notes that said that the employee was able to work with modifications, she was never scheduled to work again. The HRTO found that this was discrimination. It found that the employer’s requirement to only clean by hand (instead of using a mop, for example) was not a bona fide or legitimate requirement, and that the employer could have accommodated the woman’s pregnancy by modifying her work.
 See section 6.6. of this policy for more information on undue hardship.
 British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),  3 S.C.R. 868 at para. 19-20 [hereinafter Grismer].
Meiorin, supra note 61 at para. 65.
Korkola v. Maid Day! Maid Day! Inc., 2013 HRTO 525 (CanLII). See also Yap v. The Brick Warehouse, 2004 BCHRT 22, CHRR Doc. 04-049. In Stackhouse v. Stack Trucking Inc. (No. 2), (2007), 60 C.H.R.R. D/119, 2007 BCHRT 161, the BCHRT found that a woman was discriminated against based on pregnancy when her employer refused to accommodate her request, as per the advice of her physician, to work a 10-hour day (instead of her regular 11 ½-hour day).