Grievance Case Summary - G-427

The Force removed the Grievor from a promotion competition for a commercial crime position because he did not meet the visual acuity standard ("standard") that had been assigned to it. The Grievor filed a Level I grievance. He argued that the standard discriminated against him on the basis of a physical disability, and that it was not a bona fide occupational requirement ("BFOR"). The Level I Adjudicator denied the grievance. He found no evidence of discrimination, and concluded that because the Force set the standard in accordance with established medical practices, it was therefore a BFOR.

The Committee found that the Grievor showed that the standard was discriminatory against him on its face. It imposed a disadvantage on him by denying him a promotion opportunity that was available to other members on the sole basis of his eyesight.

The Committee then identified the prevailing common law test for determining if a job standard that was discriminatory on its face was a BFOR. Specifically, an employer had to demonstrate that the standard was (i) rationally connected to the performance of the job; (ii) adopted in the honest and good faith belief that it was necessary for the fulfilment of the employer's goal; and (iii) necessary for the employer to accomplish its purpose and that it would be impossible, short of undue hardship, to accommodate an employee who was excluded by a standard because of a personal condition.

The Committee concluded that the Force had not met its burden of proving that the standard was a BFOR in this particular case, as it failed to meet the first or third elements of the test. Specifically, it did not provide evidence to show that the standard was rationally connected to the performance of the position in question. It also did not prove that the standard was reasonably necessary, that accommodation requirements were addressed or that the standard represented the minimum requirements short of experiencing undue hardship. The Committee found that the Force did meet the second step of the test by making an honest attempt to identify a standard that could be substantiated on a medical basis.

The Committee recommended that the Commissioner of the RCMP allow the grievance and declare that the standard was discriminatory on its face and the Force did not establish that it was a BFOR. The Committee also recommended that the Force be directed to review the standard to ensure that it has been developed in conformity with human rights principles; and to review the process for establishing medical standards to ensure that all such standards are developed in conformity with human rights principles.

The Commissioner has rendered a decision in this matter, as summarized by his office:

In a decision dated April 8, 2010, Commissioner William J.S. Elliott agreed with the Committee's findings and recommendations.