Mandatory retirement will be permitted where it can be justified on "bona fide occupational requirement" grounds determined under the Human Rights Code: the employee does not meet the job requirement or qualification; the employee could not be accommodated without causing undue hardship to the employer.
Ryan and other critics point out that the "bona fide occupational requirements" raises the spectre of all employees, not just older ones, having to prove that they are physically and intellectually able to continue performing their jobs.
Thus, the defence of bona fide occupational requirement
can still apply to age discrimination in employment, even though provisions permitting mandatory retirement in human rights legislation will soon be extinct.
The Tribunal held that that it can no longer be said that the "goal of leaving mandatory retirement to be negotiated in the workplace is sufficiently pressing and substantial to warrant the infringement of equality rights." Further, the "normal age of retirement" criterion is not rationally connected to the goal of negotiated mandatory retirement, and instead the alternative of applying the defence of the bona fide occupational requirement would be less intrusive.
(2) For any practice mentioned in paragraph (1)(g) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (l)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost, [emphasis added]
Could it then argue the defence of bona fide occupational requirement
? Could it say that it would be undue hardship because its would lose a lucrative contract by refusing to abide by the policy?
Any employer's height stipulations would then be judged on the objective basis of whether they comprise a bona fide occupational requirement
However, Canadian case law indicates that customer preference regarding appearance is not usually considered a bona fide occupational requirement
of a component of it.
Employers are permitted by law to discriminate against people if they have a good faith occupational reason for so doing (called a bona fide occupational requirement
Discrimination on this basis can only be justified if found to be a "bona fide occupational requirement
It held that the Human Rights Commission had no jurisdiction over this matter because the school had a constitutional right to require religious conformance as a bona fide occupational requirement. Kearley v.
The Court held that religious conformance, including the acceptance and observance of the Church's rules regarding marriage, was a bona fide occupational requirement in a religious school because if its special nature and the unique role of teachers in achieving the objects of the school.