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A recent decision of the Saskatchewan Court of Appeal may have implications for how Ontario workplaces approach pre-hiring testing and bona fide occupational requirements. The Court held in Saskatchewan (Ministry of Environment) v Saskatchewan Government and General Employees’ Union, 2018 SKCA 28 (“Saskatchewan v SGGEU”), that there must be a clear connection between the employer’s chosen fitness test and the employee’s ability to their job. The question before the Court was whether the firefighter fitness test used by the ministry—the widely used WFX-Fit test—discriminates against women and older men.
The ministry relied on the so-called “80% rule”, which holds that a test does not discriminate against a protected class if it can be passed by at least 80% of the class in question. The 80% rule was developed by California’s anti-discrimination agency in 1971, and is now used throughout the United States as part of the Uniform Guidelines on Employee Selection Procedures. It is also widely used in Canada, although it is not an official government policy. In Saskatchewan v SGGEU, the WFX-Fit test was found to satisfy the 80% rule as it applied to women and older men. Still, the SGGEU grieved the ministry’s use of the test, and the arbitrator found for the union. The government sought judicial review, and the arbitrator’s decision was overturned by the Saskatchewan Court of Queen’s Bench (analogous to the Ontario Superior Court of Justice).
At the Court of Appeal, the union argued that a test can be discriminatory even if satisfies the 80% rule. The Court agreed reinstated the arbitrator’s decision. The Court held that, in light of evidence that “the WFX-Fit test is more difficult for women and older workers … because of physical attributes common to women and older workers”, it was reasonable for the arbitrator to conclude that the test was discriminatory “on the basis of its potential adverse impact.” More importantly, it was reasonable for the arbitrator to conclude, on the basis of the evidence before him, that the WFX-Fit test was not sufficiently connected to a “bona fide occupational requirement.” In other words, the fact that the test satisfied the 80% rule was not enough. In order to justify using a test, the employer must demonstrate that the test is an accurate measure of a bona fide occupational requirement.
The Ontario courts are not bound by the decisions of courts in other provinces, but arbitrators and Superior Court judges may find the reasoning persuasive. It is hard to see the applicability and relevance of the “80% rule” if the test itself is not measuring fitness to do the job. It appears that this reasoning would apply equally across Canada to both union and non-union settings.
Pre-hiring testing is going to be a very contextual analysis looking at both the test and what is necessary to do the job in question. Employers must be prepared to demonstrate both a rational and necessary connection between the test and the job.
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