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Women Offender Programs and Issues

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The Cross Gender Monitoring Project
3rd and Final Annual Report

i) Bona Fide Occupational Requirement

Many of the respondents were concerned that a policy of women only PWs would be inequitable and contrary to the law. However, there are strong legal arguments to support, possibly even to require, a policy of women only PWs relating to FSW. The bona fide occupational requirement (BFOR) established under the Canadian Human Rights Act is the mechanism whereby what might appear on the face of it to be a discriminatory employment practice is deemed to be non discriminatory because it serves an important and positive function. The current cross gender staffing policy which restricts the duties of male PWs is similarly an apparently discriminatory practice that would need to be justified as a BFOR. The arguments for both of these as BFORs would essentially be the same. However, the findings and analysis provided in this report indicate that in order to meet the positive purpose of the BFOR, it is necessary at this time to have only female PWs dealing with Federally Sentenced Women. The less discriminatory option of restricting the activities of male guards, while it may initially appear more palatable, has been shown to be inadequate and unworkable. Accordingly, the following discussion relates to the justification of the requirement of women only PWs to deal with Federally Sentenced Women as a BFOR. The ultimate determination of whether the BFOR justification supports the women only PW requirement would be made by a human rights tribunal, or further along by a court, if a challenge were brought against the policy.

Much of what is contained in this report relates to the BFOR question, that is an examination of whether and to what extent being female is a legitimate and necessary requirement for the PW position in relation to female inmates. The data gathered and presented in this report will provide the evidence for and/or against this proposition and upon which the BFOR assessment would be premised. We cannot repeat all of the relevant findings and analysis contained in the report in this discussion of the BFOR. This section is intended to provide an overview of the framework into which the information provided in this report would be put for the BFOR justification.

The classic statement of the requirements for a BFOR is from the 1982 Supreme Court of Canada decision in Ontario (human Rights Commission v.Etobicoke, [1982} 1 S.C.R. 202 and has been quoted in most BFOR cases since:

        To be a bona fide occupational qualification and requirement, a limitation... must be imposed honestly, in good faith, and in the sincerely held belief that such limitation is imposed in the interests of the adequate performance of the work involved with all reasonable dispatch, safety and economy, and not for ulterior or extraneous reasons aimed at objectives which could defeat the purpose of the Code. In addition, it must be related in an objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economic[al] performance of the job without endangering the employee, his fellow employees and the general public. (at p.208)

As an exception to the general prohibition against discrimination, the BFOR will be narrowly and strictly construed and rigorously examined. The requirement must clearly relate to the needs and performance of the job. It must have been thoroughly thought through, including a full exploration of alternatives that do not discriminate or are less discriminatory. Also, it must be well supported by credible evidence. According to the Supreme Court of Canada, "if the general purpose of the standard is rationally connected to the performance of the particular job, the particular standard was imposed with an honest good faith belief in its necessity and its application in its existing form is reasonably necessary for the employer to accomplish its legitimate purpose without experiencing undue hardship, the standard is a BFOR" (para 67 BCGSEU case).

BFOR's are not static concepts. Technological and other changes over time will give rise to different needs and requirements. What is considered a necessary and legitimate standard today may not be considered necessary tomorrow and vice versa. Different contexts will present different issues. Every BFOR should be periodically reviewed and assessed to determine whether it continues to be justified. Future changes in social conditions or in the correctional environment may mean that the women only PW requirement is no longer necessary.

The Supreme Court of Canada recently decided a BFOR case - British Columbia (Public Service Employees Relations Commission) v. BCGSEU (not yet reported) in which they outlined the test and requirements in detail. In addition, the Canadian Human Rights Commission's "Policy on Bona Fide Occupational Requirement" produced in 1988 is very helpful in setting out the intention, and likely application, of the BFOR exception.

The Supreme Court outlines a 3 step test to determine whether a discriminatory standard is a BFOR. The employer is required to establish the following in order to justify a discriminatory standard as a BFOR:

1. Rational connection to the job -- that the employer adopted the standard for a purpose rationally connected to the performance of the job.

This first step requires identifying the general purpose of the standard, that is what generally the standard is designed to achieve. The purpose of the female only PW standard is to protect women inmates from sexual harassment and abuse by male PWs; to protect the privacy of women inmates engaged in intimate activities; and to facilitate the emotional and psychological healing of women inmates who have been sexually abused. These purposes relate directly and significantly to the job of PW.

2. Bona fides - that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose.

This is the subjective element of the test, related to the motives and intentions of the employer. The standard cannot constitute a BFOR if it was not genuinely thought to be reasonably necessary or if it was motivated by discriminatory animus. There is ample evidence of CSCs efforts and commitment to avoid a discriminatory hiring practice in relation to PWs, if at all possible.

3. Reasonably necessary - that the standard is reasonably necessary to the accomplishment of the legitimate work-related purpose.

To show that the female only standard is reasonably necessary, it necessary to demonstrate that it is impossible to accommodate male PWs without imposing undue hardship. The women only PW standard must be shown to be necessary for the safe, efficient and reliable performance of the essential components of the job. The requirement must be objectively necessary, taking into account:

a) scientific and empirical data and expert opinion; impressionistic opinions or anecdotal evidence are less persuasive - there is no scientific data available on this question but this project provides extensive empirical data and expert opinion to support the women only BFOR

b) the detailed nature of the duties to be performed - the relevant duties relate to the extensive control and authority necessarily exercised by PWs over inmates; the job-related intimacy; the extreme vulnerability of many of the women inmates.

c) the conditions existing in the workplace with a duty to modify these conditions if to do so would not cause undue hardship - attempts to modify workplace conditions to accommodate male PWs have been unsuccessful; the undue hardship of having male PWs falls primarily on the women inmates rather than the employer, although male PWs pose an increased risk to the employer with respect to vicarious liability.

d) the effect of workplace conditions on employees, particularly those belonging to a protected group - the impact on female PWs of restricting the activities of male PWs in terms of leaving the women PWs with the most onerous and negative duties and the impact of this on their relations with the inmates is a factor that points to the inadequacy of restricted activities for male PWs as a BFOR. : It is the attempt to employ a less discriminatory practice (i.e. the current cross gender staffing policy) that actually creates the negative effect on workplace conditions. Not only is the current policy ineffective in attaining the purpose of greater protection for women inmates, it has given rise to an additional set of problems in relation to female staff.

The following are factors to be considered in relation to the BFOR:

  • Safe performance of the job -- relates to situations where the absence of the requirement would likely result in injury to the public or co-workers. Safety considerations are the strongest when they pertain to the safety of others and carry diminishing weight as they relate to the safety of the individual and to economic or material loss. The injury at risk in the PW context is to the women inmates. The risk is significant and the injury, if incurred, would be major.
  • Economic risk -- includes indirect economic damage likely to result from injury to persons. In the PW context this would include the costs associated with the increased risk of vicarious liability.

In order to show that the requirement is reasonably necessary, the employer must establish that there were no reasonable, non or less discriminatory, alternatives and that it was not possible to accommodate those adversely affected by the standard without undue hardship to the employer. If a reasonable alternative exists to burdening members of a group with a given rule, that rule will not be a BFOR. This report extensively documents the inadequacy of the less discriminatory alternative of restricting the activities of male PWs and the impossibility of accommodating male PWs while at the same time providing the protection and healing environment necessary for women inmates.

Conclusion

A BFOR exists where "the general purpose of the standard is rationally connected to the performance of the particular job, the particular standard was imposed with an honest, good faith belief in its necessity, and its application in its existing form is reasonably necessary for the employer to accomplish its legitimate purpose without experiencing undue hardship". The female only PW standard would seem to meet the requirements of each of the three steps outlined by the Court in BCGSEU and accordingly to constitute a legitimate BFOR. If found to be a BFOR, it would provide a full defence to any claim of discrimination by a male seeking a PW position working with Federally Sentenced Women.

The Supreme Court of Canada decision in Conway clearly lays the groundwork for the analysis of women only prison workers as a BFOR. The gender analysis in Conway relating to the different circumstances and particular vulnerability of women inmates strongly supports the women only PW BFOR argument. In addition, Rule 53 of the United Nations' Standard Minimum Rules for the Treatment of Prisoners provides strong support for the requirement of female only prison workers as a BFOR. The rule that women prisoners be attended and supervised only by women officers is internationally recognized as the best practice for dealing with women prisoners. The rule is premised on the values of protecting the physical and emotional safety of women prisoners and respect for their dignity and human rights. According to the Supreme Court of Canada decision in Baker, these are the values and the principle that, if possible, should be reflected in the interpretation of the CHRA and the determination of what constitutes a BFOR with respect to staffing in relation to Federally Sentenced Women.