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Is the appearance of “youth” a bona fide occupational qualification?

Image: Ambro | freedigitalphotos.net

On September 16, 2008, Kimberly Ouwroulis filed a Human Rights complaint alleging discrimination based on her age. The complaint was filed after she was terminated from a strip club, allegedly, for being too old. [1] Ms. Ouwrouls was employed as an exotic dancer and was 44 years of age at the time.

The Code

Under s.24(1)(b) of the Human Rights Code (“Code”) an employer may discriminate on the basis of the age of the applicant only if age is a reasonable and bona fide occupational requirement because of the nature of the employment. In order for a job requirement to be considered a bona fide occupational requirement (BFOR) the job requirement must pass the three-part test set out by the Supreme Court of Canada in the Meiorin case. [2] The Court held that the discriminatory rule or requirement must be:

  1. that the employer adopted the standard for a purpose rationally connected to the performance of the job;
  2. 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; and
  3. that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.

Ouwroulis v. New Locomotion, 2009 HRTO 1498 (CanLII)

As a highly publicized case, experts quickly asked the question whether or not age, for an exotic dancer, is a BFOR? Ms. Ouwroulis contended she was fired not because she was too old to do the job. She was told, 

they were going in a new direction with younger girls,” said Ouwroulis. [3]

If Ms. Ouwroulis were able to submit sufficient evidence to this effect, the onus would be placed on the employer to prove by virtue of the Meiorin test, that “looks and the appearance of youth” in their particular establishment are a BFOR. In essence it might not be her “age” per se with which the employer takes issue, but rather “age” as it relates to her physical appearance of youth, for which there is no objective test.

Conclusion

The Human Rights Tribunal of Ontario eventually dismissed the application as abandoned. Experts confess that this was an application which does not often appear, yet, regardless it would have tested the mettle of a bona fide occupational requirement, the Code, and the employer’s ability to terminate an employee based on age.

 


[1]   http://www.cbc.ca/news/canada/exotic-dancer-files-age-discrimination-complaint-1.757812

[2]   Public Service Employee Relations Commission v. BCGSEU, [1999] 3 SCR 3

[3]   http://www.cbc.ca/news/canada/exotic-dancer-files-age-discrimination-complaint-1.757812

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Kevin Sambrano

Kevin Sambrano, B.A.A. is a paralegal who is passionate about human rights. Kevin worked for a number of years as a tenant advocate organizing over 100 tenant associations and taking part in over 80 positive outcome negotiations. He completed his internship at a law firm, focusing in human rights and employment law. Recently, Kevin opened the doors of Sambrano Legal Services offering representation in human rights and employment law in Toronto and the GTA.Read more
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