A:
Bona fide occupational requirements and the duty to accommodate
Sometimes there are very good reasons to discriminate against someone. For example, someone who is in a wheelchair would not make a very effective firefighter. Also, someone who has an alcohol problem and is often drunk when she runs heavy equipment is a safety risk. If the person or organization can show that the discrimination is reasonable and justified for the job, it will be allowed. These reasonable work requirements are called “bona fide occupational requirements.”
Employers have a “duty to accommodate.” This means that they have to try to find a job for people who struggle because of a prohibited ground. For example, if an employee’s normal job involves lifting heavy items and he hurts his back, he might not be able to go back to that job due to the physical disability, but his employer should do all she can to find a place for him in the organization to do something he can handle. Employers must try to accommodate someone to the point of “undue hardship” before they can claim any discrimination is reasonable and justified.
Disputes may arise between employees and employers about whether or not the employer has done enough to try to accommodate the employee, and whether or not an occupational requirement is reasonable and justified (or “bona fide”).
Balancing Rights
Sometimes different rights will be in competition. For example, publications, statements, signs, and symbols are not to indicate discrimination or expose someone to hatred; however, this rule clashes against a person’s freedom of expression that is guaranteed in the Charter. The Commission, Tribunals, and the Courts have to be careful to protect people from discrimination but also to protect people’s free speech. Deciding which right should be protected over another is often called “balancing rights.”
Ameliorative Programs
People and organizations may design programs to help disadvantaged people, even when the program discriminates against other people. These are often called “ameliorative” programs. For example, a government program to help immigrants find housing is allowed even though it doesn’t help non-immigrants find housing.
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