What is a BFOR and Why Does It Matter?

Feb 08, 2018  |   Employment Law

When you’re on the hunt for that perfect candidate, there are a lot of moving parts and things to keep in mind: What kind of education, skills, experience, and personal attributes are “must-haves” in an ideal candidate? What are the “nice-to-haves”? What values do they need to share? What does “fit” look like? So, how do you know if your hiring practices are inclusive and welcome diversity?

With so many elements to keep in mind, it can be easy to lose sight of the screening criteria you’ve set out in the beginning. When resumes start rolling in, it can be a challenge to keep your eye on the ball, and make sure you’re focusing on candidates with the skills necessary to do the job, while avoiding discrimination in your policies, procedures, or practices. There’s a lot to juggle!

Maybe you’ve heard the term Bona Fide Occupational Requirement (BFOR), and maybe you haven’t (that’s okay too). But if you’ve ever been involved in a recruitment process, BFORs are important to know about and keep top of mind to make sure the screening standards you’re using are truly connected to the ability to do the job.

What’s a BFOR? A Bona Fide Occupational Requirement, or BFOR, is a standard or criteria that allows an employer to “discriminate” based on an otherwise prohibited ground, if there is a legitimate reason that is connected to the ability to do the job. That doesn’t mean you can discriminate based on a preference or minor inconvenience, though! We already know that there is a high threshold for accommodation, and employers have a duty to accommodate whenever possible. 

“The Supreme Court of Canada has laid out three primary criteria to establish whether a standard, policy, practice, or procedure counts as a BFOR.”

So how do you know whether a standard you’ve set is a BFOR or discrimination? The Supreme Court of Canada has laid out three primary criteria to establish whether a standard, policy, practice, or procedure counts as a BFOR, and therefore isn’t discrimination:

Criteria 1: The standard is rationally connected to the performance of the job. That means the standard has been introduced for a good reason (usually related to an employee being safely and efficiently able to perform essential job duties – like a construction worker being able to lift 50 lbs repeatedly – this requirement may discriminate against those with a disability, but is rationally connected to the performance of the job, and counts as a BFOR).

Questions to ask and answer about Criteria 1:

  • What is the standard we’re using to assess employees?
  • Why have we introduced this standard (What are we trying to achieve)?
  • Is the standard actually connected to the ability to perform the job safely and effectively?

Criteria 2: The employer adopted the standard in an honest and good faith belief that it was necessary to accomplish that legitimate work-related purpose in Criteria 1. This means the employer honestly believes that the standard is:

  • Necessary to be able to perform the job.
  • Not introduced with the intent to discriminate.

Criteria 3: The standard is reasonably necessary to the accomplishment of that legitimate work-related purpose in Criteria 1. This means you must be able to clearly show that the standard is necessary to accomplishing your purpose.

So, in order to meet Criteria 3, you must also establish that you cannot accommodate anyone negatively impacted by the standard you’ve set without running into undue hardship (which includes considerations like financial costs, efficiency of operations, and health and safety).

Your Engaged Assignment: As employers and people managers, we know that avoiding discrimination is essential. But there are always grey areas. Using the three criteria above can help you pinpoint whether a people management standard, policy, practice, or procedure you’re using to measure employees is a legitimate BFOR or constitutes discrimination – an important distinction!!

If you’re not sure whether the standards you’re using are legitimate, we’re happy to help clarify!

Disclaimer: We know a lot about people management and like to share what we’ve learned, but we’re not lawyers, and nothing in this article is intended as legal advice.