BCGEU v PSERC [1999]

Case summary

This case involves a woman, Tawney Meiorin, who worked as an initial attack forest firefighter for two years and was laid off from her position after she failed to pass a running portion of a physical fitness test. She had passed three other portions of the physical fitness test. The running test required Ms. Meiorin to run 2.5 kilometers in 11 minutes. She failed the test four times and her times ranged between 8 and 49 seconds slower than the requirement. Evidence at the hearing showed that Ms. Meiorin had safely and efficiently performed her job and was considered by her supervisor to be a capable employee whom he did not wish to lose.

This case was first heard before a labour arbitrator. Evidence at the hearing showed that women had a much lower rate of passing the running test as compared with men due to physiological differences in aerobic capacity between men and women. The arbitrator found that women as a group were adversely affected by the aerobic capacity standard set for the test even though the test was neutral on its face. He declared that Ms. Meiorin suffered adverse-effect discrimination on the basis of sex, and that the employer failed to meet its duty to accommodate her to the point of undue hardship as they had not shown that the aerobic capacity standard was necessary for the safe and efficient performance of the work.

The BC Court of Appeal overturned the arbitrator’s decision and accepted the employer’s arguments that if there is individualized testing, there cannot be discrimination.  The court also stated that accommodation to correct adverse effect discrimination could amount to “reverse/adverse effect discrimination.”

West Coast LEAF’s involvement

A coalition including LEAF, Canadian Labour Congress (CLC) and the DisAbled Women’s Network of Canada (DAWN), was granted leave to intervene in this case before the Supreme Court of Canada (SCC).

This was a very significant case for women’s equality rights as it gave LEAF and its coalition partners an opportunity to elaborate on the key human rights concepts of adverse-effect discrimination and the duty to accommodate, as well as to argue against the idea of “reverse discrimination.” Importantly, this was the first time that the SCC considered the duty to accommodate in a sex-based discrimination case.

Decision

The case was heard in February 1999.  The court reserved its decision.

The implications of the court’s decision were significant for creating substantive equality for women in the workplace, and were of particular importance to women with disabilities. The very high rate of unemployment among women with disabilities is evidence of the inability of workplaces to accommodate the needs of these women.  The legal concept of adverse-effect discrimination and the duty to accommodate also have broad implications outside of the workplace context.

Case documents

Factum – Supreme Court of Canada

Decision – Supreme Court of Canada