This case is known as British Columbia (Public Service Employee Relations
Commission) v. BCGSEU British Columbia Government Service
Employees' Union and is frequently referred to as “Meiorin” or the “B.
Firefighter Case.” Even though the case was originally dealt with as a
grievance, it is still a “human rights” case as many provinces have labour
legislation giving arbitrators the responsibility of applying human rights laws
in relevant cases [for Ontario, see the Labour Relations Act, 1995, s. 48(12)
(j)]. Ultimately, this case was decided at the Supreme Court of Canada, which
means it also applies in Ontario. Tawney worked as a forest firefighter for the
Province of British Columbia and was a member of the Initial Attack Forest
Firefighting crew for a small area in the forests of BC. The crew’s job was to
attack and suppress forest fires while they were small and could be easily
contained. Her supervisors found her work satisfactory and had no reason to
question her continuing ability to do the work safely and effectively.
After she had been successfully doing this job for three years, the
government adopted a new series of fitness tests for forest firefighters. The
tests were developed in response to a Coroner’s Inquest Report that
recommended that only physically fit employees be assigned as front-line
forest firefighters for safety reasons. The tests required that forest
firefighters weigh less than 200 lbs. (with their equipment) and complete a
run, an upright rowing exercise, and a pump carrying/hose dragging exercise
within stipulated times.
The running test was designed to test the forest firefighters’ aerobic fitness.
Subjects were required to run 2 kilometres in 11 minutes. After four
attempts, Tawney failed to meet the aerobic standard, running the distance
in 11 minutes and 49 seconds instead of the required 11 minutes. As a
result, she was laid off.
Stating that the test unfairly discriminated against women, Tawney’s union
brought a grievance on her behalf.
Some Points to Consider:
Evidence accepted at the hearings showed that, due to physiological
differences, most women have a lower aerobic capacity than most men.
Even with training, most women would not be able to increase their aerobic
capacity to the level required by the aerobic standard adopted by the
government in this case, although training can enable most men to meet it.
Evidence was also heard that 65% to 70% of male applicants pass the tests
on their initial attempt, while only 35% of female applicants are successful.
This was accepted as evidence of discrimination based strictly on gender, as
these conditions resulted in significantly fewer women than men being
employed in the particular Attack Crew that Tawney worked on.
The government argued that it had done extensive research in determining
the threshold levels for passing the tests. However, it was unable to convince the Court that the required aerobic capacity was really necessary for either
men or women to effectively perform the work of a forest firefighter. On the
contrary, because Tawney had in the past performed her work well, without
apparent risk to herself, her colleagues or the public, it appeared that the
test was invalid. This shows that, while physical fitness may still be a job
requirement, that particular test could not adequately measure a person’s
ability to perform the duties of a forest firefighter.
It was suggested that if Tawney was allowed to stay in her position this
might result in “reverse discrimination,” i., setting a lower standard for
women than for men would discriminate against men who couldn’t meet the
men’s standard but were nevertheless capable of meeting the women’s
standard. The Court disagreed with this logic. It held that equality means to
be treated according to one’s own merits, capabilities and circumstances.
True equality requires that differences be accommodated; that equal
treatment may require that people sometimes be treated differently. A lower
aerobic standard capable of identifying women able to perform the job safely
and efficiently does not necessarily imply discrimination against men.
The Court decided that the aerobic standard discriminated against women. In
its defence, the government then had to show that the standard was
necessary to safely and effectively perform the essential job duties of a
forest firefighter. This it failed to do.
As a result, Tawney was given her job back and the government was given
the task of finding some other non-discriminatory way of testing firefighters
to assess their physical fitness as a condition of holding their job.
Questions;
1. What is the Government’s Argument? Answer in  70-100 words
2. What is the Court’s Argument? Answer in   70-100 words 
3. What do you think about having different standards for men and
women? How can it be defined via the Canadian Charter of Human Rights & Freedom? Answer in   200-300 words
4. Do you think the test was a fair way of measuring a firefighter’s
ability to do the job? Why or why not? answer in 100 words
5. If Tawney has been passed, even though her running time was below
what was required, is she being given preferential treatment over
men? Why or why not? answer in  200 words
6. Would this be considered reverse discrimination for men? Why or
why not? answer in 100 words