Bona Fide Occupational Requirements (BFORs)
BFORs are specific skill sets and abilities that are necessary to fulfill the core functions of the job. Bona Fide means “good faith,” in Latin. A key element of BFORs is that the “requirement in question must have been established in good faith with the intention of achieving the stated business objective and not as a means of circumventing the Code” (emphasis added) (OHRC, 1999). Moreover, the requirement must be rationally connected to the position and related to the “core” or essential duties of the job and not incidental functions.
For example, a job for a computer salesperson may be described as requiring someone with the physical ability to lift 20 kg on a regular basis. However, for a computer salesperson’s job it is knowledge of computer that is essential, while the ability to lift 20 kg on a regular basis is incidental. Therefore, the ability to lift this weight would not be a BFOR.
As well, in meeting the legislated requirements of a BFOR it is necessary that the employer consider the person’s actual ability, and not any negative assumptions based upon perceived group characteristics. Additionally, it is important to understand that BFORs are determined only after employers have made every attempt to accommodate an individual to the point of undue hardship . Therefore, employers cannot reject a qualified applicant or terminate someone’s employment until it is determined that after all attempts have been made to accommodate that individual up to the point of undue hardship, he or she is still unable to perform the essential duties of the job.
In assessing if the employer has provided accommodation up to the point of undue hardship prior to making the BFOR defense. The Ontario Human Rights Commission Policy and Guidelines on Disability and the Duty to Accommodate states that… the following factors should be considered in the course of the analysis: