Discrimination in Employment: British Columbia (Public Service Employee Relations Commission) v.

BCGSEU, [1999] 3 S.C.R. 3 (Meiorin)

The Facts:
Tawney had been working for the BC Government as a forest fire-fighter for 3 years. Her team was sent to
attack and suppress forest fires while they were small. Tawneys supervisor considered her a capable and
valuable employee and her performance evaluations were positive.
In 1994, Tawney (and all her colleagues) had to take a fitness test. This was a new test which had been
developed because a Coroners Inquest Report recommended that only physically fit employees be
assigned as front-line forest firefighters for safety reasons. The Government hired university researchers to
develop a test that was a fair and accurate measure of the ability to do the job.
The test required that forest firefighters weigh less than 200 lbs. (with their equipment) and complete a
shuttle run, an upright rowing exercise, and a pump carrying/hose dragging exercise. To pass the running
test, Tawny had to run 2.5 km in 11 minutes.
Everyone had to pass the test in order to remain a fire-fighter. The running test was supposed to test
aerobic fitness and was based on the premise forest firefighters must have a minimum VO2 max of 50
ml.kg-1.min-1 (the aerobic standard). VO2 max measures maximal oxygen uptake, or the rate at which
the body can take in oxygen, transport it to the muscles, and use it to produce energy.
Tawny passed the strength tests but failed the running test (4 times). Her time was 11 minutes and 49
seconds. As a result, Tawney was fired from her job.
Tawny was a union member and the union filed a complaint. She challenged the fitness test requirement
and said that she should have her job back.

The Charter

Section 15 (1) Every individual is equal before and under the law and has the right to equal protection and
equal benefit of the law without discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical disability. (also now includes sexual
orientation as a ground).
Discussion Questions:
- What is happening in the scenario?
- What are the issues?
- Is there discrimination? If so, what does it look like? (What is discrimination? Defn below)
- How do each of the parties feel? What are they thinking?
o Tawny, her employer, what about the public?
- What would you do if you were Tawny? Her employer?
- What are some of the outside influences or pressures that shape our decisions and reactions?
o Is this a safety issue? Can Tawny really do the job?
- What do you think should happen? How would this be best solved?

Discrimination in Employment: British Columbia (Public Service Employee Relations Commission) v.

BCGSEU, [1999] 3 S.C.R. 3 (Meiorin)
Discrimination Definition:
Unfair treatment of one person, or group usually because of prejudice about race, ethnicity, age, religion,
gender, or sexual orientation.
Sexual Harassment Definitions:
Behaviour of a sexual nature which you feel you must put up with in order to keep your job, get a promotion
etc. Sexual Harassment is discrimination based on a persons sex usually because that person is femaleSexual Harassment includes any and all unwelcome sexual advances, requests for sexual favours, and
other verbal or physical conduct of a sexual nature. But it does not require physical touching!
What really happened?
The Arbitration
- The Arbitrator found that Tawney was unfairly dismissed. She was entitled to be reinstated and to
receive lost wages and benefits.
- An aerobic capacity standard was reasonable but there was no evidence that running 2.5 km in 11
minutes was necessary to perform the job safely and effectively.
- There was no intention to discriminate but there was adverse effect discrimination because the
effect of the standard was to exclude most women.
- Due to physiological differences, women have lower aerobic capacity than men and, even with
training, most would not be able to meet the test. There was no evidence that failing the running
test meant that Tawney was a safety risk to herself or others.
The Court of Appeal
- The CA overturned the Arbitrators decision. It said that as long as a standard is necessary to the
safe and efficient performance of the work and is applied through individual testing, there is no
discrimination.
- Reinstating Tawney would create reverse discrimination by setting a lower standard for women.
The Supreme Court of Canada
- The SCC reinstated the Arbitrators decision. It said that the Court of Appeal made a mistake in
finding that the aerobic standard was necessary to the safe and efficient performance of the work.
- This case is important in that it recognizes that equality does not always mean equal opportunity
for everybody, but takes into consideration individuals differences.

Discrimination in Employment: British Columbia (Public Service Employee Relations Commission) v.

BCGSEU, [1999] 3 S.C.R. 3 (Meiorin)
Discussion:
- What do you think of the decisions? What does your gut tell you is fair? Right? Moral?
Returning to the Court of Appeal decision about Reverse Discrimination:
- What is reverse discrimination?
Reverse discrimination occurs where provisions have been put in place to protect a minority group that has
been historically discriminated against for example, racial minorities, women, people with disabilities but
then has the outcome of putting those people on an uneven level with the rest of the groups.
-

Is it unfair? Does it create problems and further concerns?

Is it necessary?

Returning to the Supreme Court of Canada decision:

- What is substantive equality?
Substantive Equality involves achieving equitable outcomes as well as equal opportunities. It takes into
account the effects of past discrimination and it recognizes that rights, entitlements, opportunities and
access are not equally distributed throughout society.
Ex. Equal opportunity does not always equal the same outcome. Everyone has the right to vote, but visually
impaired individuals cannot read ballot forms. So, ballots are made with Braille to allow for visually impaired
individuals to exercise their rights. So although we all have the same opportunity to vote, without the forms
in Braille, the outcome would be very different.
-

Why is it important? Should we care about it?

Discussion Questions:
- Which Court do you agree with? And Why?
- Does this look and feel like discrimination on the basis of sex? Something else?
- Are there other types of discrimination that would be harder to see or recognise than this one?
o What might those look like?
- How can we guard against discrimination?
- Who has the responsibility to end discrimination?