Bona Fide Occupational Qualification Defined

Canadian National Railway Co. v. Canada (Human Rights Comm.) and Bhinder (1985), 7 C.H.R.R. D/3093 (S.C.C.)

In a split decision, the Supreme Court of Canada rules that K.S. Bhinder was not discriminated against when he was required by his employer, CN Rail, to wear a hard hat. K.S. Bhinder is a member of the Sikh religion which requires him to wear a turban and no other head covering. K.S. Bhinder's employment was terminated when he refused to wear a hard hat. The Federal Court of Appeal ruled that the requirement of wearing a hard hat was a bona fide occupational requirement and did not amount to discrimination of the basis of religion. This is an appeal from that decision by K.S. Bhinder and the Canadian Human Rights Commission.

The majority of the Court finds that the hard hat requirement is a bona fide occupational requirement, and the special circumstances of an individual should not be taken into account once it is established that an employment rule is a bona fide occupational requirement. There is no duty to accommodate where there is a bona fide occupational requirement.

The Court repeats its finding in Ontario (Human Rights Comm.) and O’Malley v. Simpsons-Sears Ltd. (1985), 7 C.H.R.R. D/3102 (S.C.C.) that it is not necessary to show an intention to discriminate in order for there to be a violation of human rights legislation. Although the hard hat rule was imposed in good faith and not in order to discriminate against members of the Sikh religion, the rule nonetheless has a discriminatory effect on members of the Sikh religion. The hard hat rule is saved, however, because it is a bona fide occupational requirement.

Dickson C.J. and Lamer J., dissenting, find that s. 14(a) of the Canadian Human Rights Act, the bona fide occupational requirement provision, was not intended to obliterate the duty to accommodate. A requirement which has the effect of discriminating against an individual is not bona fide within the meaning of s. 14(a) unless not imposing it would create an undue hardship on an employer.

In addition, Dickson and Lamer JJ. find that federal legislation is inoperative to the extent that it conflicts with the Canadian Human Rights Act. The fact that the wearing of safety helmets is provided for in the Canada Labour Code does not mean that the Labour Code provisions create an exception to the Canadian Human Rights Act. On the contrary, the wearing of hard hats by Sikhs, because of its discriminatory effect, is governed by the Canadian Human Rights Act.

The appeal is dismissed.

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