Discrimination: Employee’s Sex Should Not Matter

Great Blue Heron Charity Casino v. Seguin – Ontario Superior Court of Justice – September 10, 2008

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.

The Ontario Superior Court of Justice’s September 10, 2008 decision in Great Blue Heron Charity Casino v. Seguin [2008] O.J. No. 3472 (“Seguin”) sheds light on the issue of 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. 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 man 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.

Comments are closed.