Published in CELT (Canadian Employment Law Today Issue No. 527 – February 11, 2009
An employer’s decision to hire an employee based on their sex may be found to be a prima facie case of discrimination unless it can be justified that the employee’s sex is a bona fide occupational requirement.
By Ronald S. Minken, LL.B.
The recent decision by the Ontario Superior Court of Justice in Great Blue Heron Charity Casino v. Seguin  O.J. No. 3472 (“Seguin”) sheds light on discrimination at the workplace. Specifically, bypassing an employee for a position because of their sex is a case of prima facie discrimination.
In Seguin, the female employee was hired by the employer to clean the women’s washrooms. One month later, a male employee who cleaned the men’s washrooms quit and the employer filled the position with another male employee. This act was in accordance with the employer’s workplace policy of workers only cleaning their sex’s bathrooms because the bathrooms had to be cleaned while still open to patrons. Due to this policy the female employee was not even considered for the position. Claiming discrimination on the basis of sex, the female employee took the matter to the Human Rights Tribunal of Ontario.
The Tribunal found that “a prima facie case of discrimination on the basis of sex was made out from the simple fact that [the female employee] was not considered for the vacant full time housekeeping position because she was a woman” and that “there was no evidence to show the [employer] canvassed any alternatives to replacing a man with a woman and carrying on the same as before, considered whether washroom cleaning could be done in any other way or considered whether alternatives could have been implemented without undue hardship”, therefore not justifying that the employee’s sex was a “bona fide occupational requirement”. The employer appealed this decision to the Ontario Superior Court of Justice.
After reviewing the facts of the case and the decision of the Tribunal, the Court allowed the appeal in part. The Court affirmed the Tribunal’s decision in all matters except the remedy that was awarded stating “there was evidence on which the tribunal could reasonably find such discrimination” and “it was reasonable for the tribunal to reach the conclusion that it did on the basis of the evidence before it, particularly in light of the stringent burden of proof.”
The decision that was reached by the Tribunal and upheld by the Court in Seguin demonstrates that employers cannot hire an individual for an employment position based on their sex unless it can be proven that the employee’s sex is a bona fide occupational requirement. If this cannot be proven, then the employer may be found to have committed prima facie discrimination by not considering other potential employees because of their sex.
Although Seguin has shed light on the subject of workplace discrimination, much of this topic remains in the dark. This is due to the fact that in determining whether a form of discrimination is prohibited or whether it is a bone fide occupational requirement depends on the specific circumstances and facts that appear in each individual case. This makes it difficult for both an employer and an employee to know whether an act of discrimination in the workplace is permitted or not
Despite this shortcoming in the area of workplace discrimination, the result in Seguin is one that both employers and employees should pay great attention to. In order to ensure that they have not discriminated against their employees, employers need to be aware of the fact that even though a certain preference to one sex for a certain position will be more beneficial for the company and its patrons, such a preference is still discrimination and will not automatically be considered a bona fide occupational requirement because of the benefits it provides. As was seen in Seguin, the employer was being discriminating towards the employees by only considering male employees to clean the men’s washroom and female employees to clean the women’s washroom. Such a finding of discrimination may be frustrating for many employers, especially when they consider how the patrons of the casino may react to someone of the opposite sex cleaning the washroom while it is in use. Nonetheless, an employer’s desire to make their patrons feel comfortable should not be achieved at the employee’s expense. The employer must ensure that they achieve the best situation for their patrons while making sure that all of their employees are treated equally and not discriminated against for the benefit of the company and patrons. This position was echoed by the Tribunal in Seguin when they stated that different routes for cleaning the washroom should have been canvassed by the employer which would not have discriminated against the employees.
Similarly, employees need to be aware of what is contained in the notion of workplace discrimination. As was discussed in Seguin, not being considered for an employment position due to one’s sex is not always considered prohibited discrimination. If it is a bona fide occupational requirement for the position, then such discrimination is permitted. However, if there is no such bona fide occupational requirement for the position, then the discrimination is not permitted no matter how minor it may be or how beneficial it is for either the company or its patrons.
Authors: Ronald S. Minken, B.A.(Hon.), LL.B. is a senior lawyer at Minken & Associates P.C., an employment law boutique located in Markham, Ontario. Ronald gratefully acknowledges Kyle Burgis and Sara Kauder for their assistance in preparation of this article.