Bona fide occupational requirement (BFOR)

A buyer who takes over staff may set new hiring or retention criteria after closing. Under the Canadian Human Rights Act, it is the employer that must establish a requirement is based on a bona fide occupational requirement. The red flags a buyer can find are in employment red flags when buying a business, and the related duty is in duty to accommodate.

The federal test

Section 15(1)(a) of the Canadian Human Rights Act says it is not a discriminatory practice if a refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to employment is established by an employer to be based on a bona fide occupational requirement. Section 15(2) adds the undue hardship condition. Section 15(1) lists other exceptions as well.

Ontario uses different words

Ontario’s Human Rights Code does not use the phrase in section 24. Among the cases that section lists, subsection (1)(b) says the right to equal treatment in employment is not infringed where discrimination is for reasons of age, sex, record of offences or marital status if the age, sex, record of offences or marital status of the applicant is a reasonable and bona fide qualification because of the nature of the employment. Subsection (2) says no tribunal or court shall find such a qualification reasonable and bona fide unless satisfied that the person’s circumstances cannot be accommodated without undue hardship, considering cost, outside sources of funding, if any, and health and safety requirements, if any. Which law applies to a given employer is a question for a qualified professional. This entry covers the federal Act and Ontario only; check the rules where you are.