The Meiorin decision and the duty to accommodate: 25 years of missed opportunities to remove barriers
September 9th, 2024 marks the 25th anniversary of the Supreme Court of Canada’s landmark decision in British Columbia (Public Service Employee Relations Commission) v. BCGSEU commonly known as the Meiorin decision. The Meiorin decision is about a human rights complaint dealing with workplace discrimination and accommodation. This decision had important implications for people with disabilities because disabled people, then and now, file the highest proportion of human rights complaints across Canada.
The Meiorin decision changed how human rights complaints were analyzed. The Court recognized that the legal framework at the time “served to legitimize systemic discrimination.” The Court established a new framework aimed in part at addressing systemic discrimination.
The Meiorin Three Step Test
The Court established the ‘three step test’ that’s routinely referenced in training and articles on the duty to accommodate in the workplace. The test is used to confirm if a discriminatory workplace standard is a bona fide occupational requirement (BFOR). The three steps ask if the standard:
- was adopted for a purpose rationally connected to the job
- was adopted in an honest and good faith belief that it is necessary and,
- is reasonably necessary to accomplish that legitimate work-related purpose. To show that the standard is reasonably necessary, the employer must demonstrate that accommodating the employee would cause undue hardship.
Employers don’t apply the test as it was intended
The Meiorin decision and the three-step test was cause for celebration and optimism. In 1999, we believed that Meiorin would be an effective tool in removing systemic barriers to inclusion. In practical terms, I don’t think the potential has been realized.
Outside of the legal realm, when discussed in training or used for decision-making, the three step test results in a cursory self-assessment and pat on the back for the first two questions. Yes and yes, the standard is rationally connected and adopted in good faith. Where things fall apart is in part 3 of the test. There’s a rush to accommodation that ignores the question: can we simply change the workplace standard/barrier so that accommodation is not needed?
Example: is an ability to stand for extended periods of time really required?
For example, a job posting for a cashier position notes a long-standing requirement that an applicant must be able to stand at their workstation for their entire shift. This requirement is in place, even though the height of a modern cashier’s workstation is adjustable, and a tall stool can fit behind the station quite easily. An experienced cashier, who can’t stand for extended periods for reasons related to disability, applies. In their application, they share this and offer several ways they have adapted their previous workstations.
What I’m seeing in situations like this is a rush to accommodation, rather than identification and removal of barriers. The employer may see the point that the experienced candidate has a track record for doing the job without standing for their entire shift and may make the job offer. But they don’t revise the job requirements.
In this example, the first two questions in the test are easily passed. Serving clients from the cashier’s workstation is still a requirement of completing the job. The standard is rationally connected and adopted in good faith. The end result is that the standard remains in place while the applicant is accommodated. They are supplied a stool for their workstation. Other employees are still required to stand for their entire shift length. The discriminatory rule remains.
The dark side of accommodation
Accommodation is very important and there’s also a dark side. When discriminatory rules persist and people with disabilities are offered accommodation outside of the rule, it reinforces ‘othering’. It adds to the us vs. them dynamic through the false narrative that disabled people and other groups who are marginalized are getting “special treatment.”
The true intent of the Meiorin decision: removal of barriers for all
The Meiorin decision was written by judges for other judges and arbitrators when considering legal complaints. It’s application outside of the legal realm often ignores the barrier-removal intentions of the 3-step analysis. At paragraph 65 of Meiorin, the Court provided some important questions to consider at step 3. All these questions point to replacing the discriminatory standard:
- Has the employer investigated alternative approaches that do not have a discriminatory effect?
- If alternatives were researched and could fulfil 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?
The questions above need to be asked by employers as part of their consideration of employees asking for accommodation.
Employees who name barriers are offering a gift
When an employee identifies a need for an accommodation, they are not just addressing their own needs. They are also doing the work of pointing out a barrier that has or will impact many. They are providing the gift of barrier-identification.
We should respond first with trying to remove the barrier, not with a rush to accommodation. Next, we should be asking how the barrier raised by one individual can be removed for all.
Viewing a barrier report as an opportunity to improve accessibility and reduce discrimination for all aligns with the spirit of human rights legislation and the spirit of the Accessible BC Act. Let’s take this anniversary as an opportunity to tap into the true potential of this important legal decision.
Therese Boullard (she/her) is a human rights and equity, diversity & inclusion expert. For more than 20 years, Therese served as a human rights investigator, mediator, educator, and policy analyst for the BC Human Rights Commission, as Director of the Northwest Territories Human Rights Commission, and contract investigator for the Yukon, Alberta and Canadian Human Rights Commissions. For the last eight years, Therese has shifted her career to focus on advancing equity, diversity and inclusion within public sector organizations.