The Code prohibits discrimination that results from requirements, qualifications, or factors that may appear neutral but have an adverse or negative effect on people identified by Code grounds.[82]
At the same time, the Code allows an organization to show that the requirement, qualification or factor is nevertheless “reasonable and bona fide” in the circumstances. However, to do this, the organization must show that the needs of the person cannot be accommodated without undue hardship.[83]
The legal test
The Supreme Court of Canada has set out a framework for deciding whether a prima facie (on its face) discriminatory requirement[84] is reasonable and bona fide (legitimate) in the circumstances. The organization must show on a balance of probabilities (more likely than not) that the requirement:
- 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
- Is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.
Ultimately, the person who wants to justify a discriminatory requirement, rule or standard must show that accommodation was incorporated into the standard to the point of undue hardship. This means the requirement was designed or changed to include as many people as possible, and that any remaining individual needs were accommodated, short of undue hardship.
Example: In the case XY v. Ontario (Government and Consumer Services), the Human Rights Tribunal of Ontario (HRTO) found that requiring trans people to have transsexual surgery to change their sex designation on a birth certificate (under the Vital Statistics Act) was not reasonable and bona fide and discriminated against trans people.
The HRTO said: “the respondent has not established that allowing transgendered persons to change the sex designation on their birth registrations and birth certificates without surgery would make vital event data less accurate and reliable than it is under the current system, let alone to the point of imposing undue hardship on the respondent.” [85]
In this case, the Province of Ontario failed the third part of the test and could not show the requirement was “reasonably necessary….”
[82] See section 11 of the Code: Constructive discrimination.
[83] The test for undue hardship is set out fully in the OHRC’s Policy and guidelines on disability and the duty to accommodate, and is discussed in greater detail in section 10.3 of this policy.
[84] See section 6.2 of this policy, Determining discrimination, for an explanation of prima facie discrimination.
[85] XY v. Ontario (Government and Consumer Services) 2012 HRTO 726 at paras. 238 and 240 (CanLII). See also Finan v. Cosmetic Surgicentre (Toronto), 2008 HRTO 47 at paras. 42-50 (CanLII) for a case where the HRTO found the respondent met the three-step test, therefore justifying prima facie discriminatory treatment in services. See also Québec (Comm. des droits de la personne et des droits de la jeunesse) c. Maison des jeunes À-Ma-Baie Inc. (No 2) (1998), 33 C.H.R.R. D/263 (T.D.P.Q.) for a case where an employer did not meet the three-step test and could not establish a genuine and bona fide occupational requirement related to gender identity.