british columbia (public service employee re

8/8/2019 British Columbia (Public Service Employee Re

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Cited as:

British Columbia (Public Service Employee RelationsCommission) and British Columbia Government and Service

Employees' Union (Meiorin Grievance)

IN THE MATTER OF the Labour Relations Code of B.C.

AND IN THE MATTER OF an Arbitration

Between

The Government of the Province of British Columbia as

represented by Public Service Employee Relations Commission

(hereinafter called the "Government" and/or the "Employer"),and

B.C. Government and Service Employees' Union (hereinafter

called the "Union")

(Tawney Meiorin Grievance)

[1996] B.C.C.A.A.A. No. 441

58 L.A.C. (4th) 159

Award no. A-273/96

British ColumbiaCollective Agreement Arbitration

M.I. Chertkow, Arbitrator

Heard: (Vancouver, B.C.) June 17-19, 1996.

Award: September 17, 1996.

(67 pp.)

Appearances:

Peter Gall, for the Employer.

Ken Curry and Jaynie Clark, for the Union.

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AWARD

I

1 On August 5th, 1994, the grievor, who was a Forest Technician on the Initial Attack Crew in the Golden Forest

District, was laid off. Previously, on June 15th, 1994, she was suspended after failing a fitness re-test for aerobiccapacity on June 9th. Her recall rights under the collective agreement expired after nine months.

2 It is the position of the union that the aerobic fitness test was not administered fairly by the employer. Nor was it

consistently applied amongst Native Unit Crews, Initial Attack Crews and Contract Crews. Further, says the union, the

aerobic capacity test implemented by the employer for the 1994 summer fire season has an adverse effect on female

firefighters because of physiological differences between men and women. It is discriminatory against women. A

significantly greater percentage of men are able to pass the test than can women. Finally, urges the union, rather than lay

Ms. Meiorin off, it ought have to accommodated her inability to meet the aerobic fitness standard by placing her in

other work within the Ministry of Forests which it could have done without undue hardship.

3 As remedy, the union seeks the reinstatement of the grievor to her Forest Technician position and that she receive

financial compensation for lost wages and benefits on the "make whole" principle. Further, the union seeks an order

from this board of arbitration to require the employer to accommodate female applicants by adjusting the standard for

measuring aerobic fitness which would recognize the physiological differences between men and women or

alternatively, to allow female initial attack firefighters to be tested on the lesser standard that is applied to native

firefighting crews.

4 The employer asserts the aerobic fitness tests were administered fairly to Ms. Meiorin. The test is reasonably

related to firefighting duties. It measures aerobic fitness to the standard of 50 VO[2] max. VO[2] max represents the

maximal rate at which the body can deliver oxygen to working muscles, then take up and use that oxygen in the muscles

to perform work. The test, it says, does not discriminate against women, either directly or indirectly. The aerobic

capacity standard it has implemented is necessary for the safe and effective performance of their work by initial attack

crew members. Every candidate for that position has his or her physical fitness measured individually against the

standard. It is not related to group stereotypes. The standard does not effectively exclude women. With proper training

women can, and do, pass the test.

5 The employer says further that if the standards were lowered to ensure more women could pass them, it would

seriously compromise the safety of women who do not meet the standard as well as their fellow crew members. It

would also compromise the effectiveness of the government's forest firefighting efforts thereby endangering the safety

of the members of the general public, and the preservation of private property and crown forest land. It urges the

grievance of Ms. Meiorin be dismissed.

6 The employer says the union is attempting to expand the grievance (Exhibit U-10). There, it challenged only the

unreasonableness and arbitrariness of the test. It was made mandatory in 1994 while in the two preceding years it was

voluntary. As well, it had not been applied to all firefighters. Anything else, says Mr. Gall, is not properly before me.

II

7 Before turning to the issue of the appropriateness or otherwise of the aerobic fitness standard test that is

administered to all initial attack crew members, including the grievor, it is appropriate to outline, as background, the

facts which led up to her layoff.

8 She was first hired in May, 1992 as an Auxiliary Forest Technician I, Initial Attack Crew, in the Golden Forest

District. In her appointment letter she was advised that at the beginning of her employment she would be tested to

determine her capability. The tests included;

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- 24 push-ups in one minute or less

- 7 pull-ups (chin-ups) in one minute or less

- 24 sit-ups in one minute or less

- run 2.5 kilometres in 11 minutes or less.

Notwithstanding the conditions set out in her appointment letter, she was not given the physical fitness test nor wereother firefighters in the Golden Forest District in 1992. At the end of the 1992 firefighting season, the grievor was laid

off.

9 The employer was apparently satisfied with her performance. On March 26th, 1993 she was offered another

appointment in the same capacity she had in the previous year. Once again, in her appointment letter, she was advised

her physical condition would be tested.

10 As in previous years, no physical fitness tests were given to forest firefighters in the Golden Forest District for

1993. However, they were all advised there would be a new fitness standard introduced in 1994 and that passage of the

test would be mandatory beginning in the Golden Forest District in 1994, as well as in all other forest districts. It would

not be a voluntary test, as was the practice previously in the Golden Forest District. During the 1993 firefighting season,

initial attack crew members in the Golden District were given fitness passes at a local health club and were allowed onehour each working day, when not fighting a fire, to do physical fitness training.

11 The new mandatory physical fitness test, which was designated as the Bona Fide Occupational Fitness Test, was

designed at the University of Victoria under the express mandate to develop non-discriminatory physical fitness

standards for forest firefighters in British Columbia.

12 At the end of the forest firefighting season in 1993, Ms. Meiorin was again laid off. On January 18th, 1994 a letter

was sent to her in which she was advised the Protection Branch and the Nelson Forest Region had adopted the Bona

Fide Occupational Fitness Test for all initial attack personnel for the 1994 fire season and thereafter. She was told that if

she wished to continue to be part of the initial attack program, she would have to meet the following standards as a

condition for employment for the 1994 firefighting season;

Shuttle Run - minimum stage ten Upright Row - 1100 pounds total weight lifted Pump/Hose Test- less than 4:10 minutes total time Body Weight (inclusive of clothing and P.P.E.) Maximum of

200 pounds.

In that letter, she was advised further that she would be required to pass the above tests prior to being confirmed in her

position. She was also told she would be re-tested a minimum of two additional times during the term of her

employment.

13 Shortly after sending that letter, Ms. Meiorin's supervisor, Bob Beugelan, telephoned her and the rest of the crew

offering the use of equipment to train for the new physical fitness tests. Sometime around the end of January, 1994, the

grievor borrowed equipment to practice for the tests.

14 Once again, Ms. Meiorin was offered an appointment as an Auxiliary Forest Technician I, Initial Attack Crew

member, in the Golden Forest District. The term of appointment was from May 2nd, 1994 to September 15th, 1995. Theoffer was contained in a letter to her dated April 13th, 1994 and it was stated in the letter that she had "to meet the new

Bona Fide Occupational Fitness Standard as outlined in our previous correspondence, prior to being confirmed for

employment".

15 A few days later, the grievor advised Mr. Beugelan because she feared re-injuring her knee (she had a previous

knee injury), she did not want to do the shuttle run component of the Bona Fide Occupational Fitness Test. Mr.

Beugelan advised her she had the option of taking the told test (run 2.5 kilometres in 11 minutes or less) if she failed the

Bona Fide Test. That option was given to all recalled employees on unit and initial attack crews. If they failed the new

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test, they were allowed to take the test that was required for their units at the time of their hire. That included native unit

crews. However, all new hires, including new hires on the native unit crew, had to pass the Bona Fide Test as a

condition of employment.

16 On May 4th, 1994, the grievor attempted the new Bona Fide Test but failed. She was allowed to take the old test

which also did on that day. She did the 2.5 kilometre run in 11 minutes 30 seconds, which was 30 seconds slower thanthe standard. She attempted the old test again on May 11th, 1994 and failed it. Her running time was 11:08. However,

because her time on the run was close to the required standard, Mr. Beugelan gave her a "conditional pass". The

condition was that she must pass the next re-test. Another employee, Mr. Lorne Pukas, was also given a conditional

pass on the same understanding.

17 The next re-test for the grievor occurred on June 8th, 1994. She failed the 2.5 kilometre run again. Her time was

11:30. All other members of the initial attack crew, including Mr. Pukas, passed the re-test.

18 On June 15th, 1994, the grievor was given a further re-test. However, before she commenced her run, she was

advised it had been discovered that the track had been 40 metres too short on previous runs and that had now been

corrected. Once more, the grievor failed to meet the standard for the run. It took her 11:49.4 to complete it. According

to Mr. Beugelan's observations, she was about 43 seconds over the 11 minute mark by the time she got to the last 40metres.

19 It is to be noted the grievor did not express any dissatisfaction or complain about the administration of the test on

June 15th, 1994 or on any previous occasion. Further, all members of the initial attack crews, including the grievor,

were given one hour per day for fitness training during 1994. The only initial attack crew member who failed to pass the

physical fitness test was the grievor. As a result of her failure to pass that last test, she was suspended. The employer

said she "must be considered physically unqualified to carry out the work required of initial attack crews, and cannot be

included on the active duty roster". Then followed her layoff on August 5th, 1994 and the subsequent filing of her

grievance, the subject of these proceedings.

III

20 I now turn to a summary of the relevant and probative testimony given at these hearings. I have carefullyconsidered all that evidence but I find it necessary to comment only on the following matters.

21 The grievor explained in detail the aerobic tests which she did in May and June of 1994. She agreed she ran the

2.5 kilometre run in 11:30 on May 4th. On May 11th she did it in 11:08. In her conversation with Mr. Beugelan he told

her the result was "close enough". She felt she could pass the test the next time she took it and he never told her he had

given her a "conditional pass".

22 On her re-test on June 8th, in which she completed the 2.5 kilometre run in 11:30, she said there was a 30

kilometre wind. She also faced cross-winds. The running course had changed from her previous test on May 4th. The

May 11th and June 8th tests were run on the airport.

23 Turning to her re-test on June 15th, she said the employer had extended the course at the airport.

24 Ms. Meiorin went on to say that when she was suspended on June 15th, she was devastated. She has lost all her

seniority which expired nine months after her layoff.

25 The grievor then testified as to the work she has done since her layoff. She worked for three months in the logging

industry bucking trees. She has also done bucking as a polecat logger as well as first aid work. She has also run a

skidder in a logging operation. The grievor went on to say she does ski touring, rock climbing, hiking, cycling and plays

tennis. In her opinion, she was not a safety threat because she failed to pass the aerobic test. She has spent six years

fighting fires without any problems.

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26 In cross-examination, the grievor agreed she continued physical fitness training in 1993. She has spent time in the

gym, swam and cross-country skied. She also agreed she was advised that she would have to pass the new Bona Fide

Occupational Fitness Test for the 1994 firefighting season. She said she started to train for the test in early 1994 and Mr.

Beugelan offered equipment to her and other members of the crew for their training. She said she did not train for the

shuttle run because of risk to an old knee injury. Mr. Beugelan told her she could substitute the 2.5 kilometre run for the

shuttle run. She said that on May 3rd, in a conversation with forestry officials, she complained about the gender

difference between men and women and expressed the view that women should have extra time to complete the run.

27 Turning to her re-test on May 11th, 1994, she agreed Mr. Beugelan told her that she could "knock it off the next

time". He expected she could pass the test with training. She trained "all the time" until her next re-test on June 8th. She

agreed the track was measured that day. She confirmed she took the test again on June 15th and failed it. Ms. Meiorin

said she should have had another chance to pass the test.

28 The grievor went on to say that when she was suspended her reaction was that it was "unfair". Women ought to

have more time for the test because it is unrealistic to expect them to meet the standard. The standard has a negative

impact on women. She said while some parts of the tests related to firefighting, other parts did not have much to do with

it. In her opinion, firefighting is not that tough a job. It is less dangerous than logging. In her view, the requirement to

run 2.5 kilometres in 11 minutes is not related to the job of firefighting and discriminates against women. The test is toostrict for them.

29 The union called Mr. Stephen Brown, who is a laboratory instructor in Kinesiology at Simon Fraser University.

He is an expert in that field. He holds a Master of Science Degree and works in the Human Physiology Laboratory at

the university. He specializes in human performance for both sport and work. At the request of the union, he prepared a

report on aerobic fitness and the new physical fitness tests used by the Ministry of Forests. His report was admitted as

Exhibit U-12 in these proceedings. He was asked to review a number of scientific reports. They were the following;

Brian J. Sharkey, PHd. (1990 and earlier), and the two University of Victoria findings - "Bona Fide Occupational

Fitness Tests and Standards for B.C. Forest Service Wildland Firefighters" (1992) and "Physiological Cost of Wildland

Firefighting and Bona Fide Occupational Fitness Requirements" (1994). As well, he reviewed a pamphlet entitled "Fit

for Duty". The witness said that based on his review of that material and his 15 years experience related to the

measurement of fitness for work and after referencing a number of other published works, he came to the following

conclusions.

30 In his view, measurement of aerobic fitness is most accurately done by gas sampling during progressive work to

exhaustion. However, that involves considerable laboratory equipment. As an alternative, a number of indirect measures

of oxygen uptake have been developed including running a prescribed course within a specific time limit.

31 Turning to gender differences in aerobic fitness, Mr. Brown noted the following at page 2 of his report;

Gender Differences in Aerobic Fitness Females are less able to do aerobic work than males. This

is due to a number of factors. Females, in general, have a higher percentage of their body mass as

fat, and less as muscle. This is a handicap in any activity where the body mass must be moved

(e.g., walking or running). Females also have less total hemoglobin, less blood volume, and a

lower concentration of hemoglobin in the blood. The blood transports oxygen to muscles and

other tissues; almost all of the oxygen is transported on hemoglobin. Females also have smaller

heart volume, lower stroke volume (the amount of blood pumped with each beat), and lower

cardiac output (the number of litres of blood pumped per minute) than males. Also,

(arterio-venous) 02 difference is lower for females. This means that females have more trouble

getting oxygen to muscles, and have less muscle able to use the oxygen (ACSM Resource

Manual, p 68-69 + 79; Astrand + Rodahl, pp 318-322; Fox, pp 376-389 and 395-399) (Figure 1).

Based on those physiological differences, he commented that it is not surprising the average female has lower VO[2]

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max than the average man - some 15% to 25% lower was noted in several studies. He commented further at page 3;

The figures in Dr. Brian Sharkey's report (Entry #2) show the same gender handicap in aerobic

fitness in college students. "The average male college student scores between 45-48, while the

average female scores around 40 ml/kg-min" (p 5). The step test scores for the Caucasian

woodland firefighters and associated workers that he measured show a VO[2] max predicted fromthe step test to be 54.7 and 48.5 for the males and females, respectively (Entry #3, p 12). No

figures for non-Caucasian females are presented.

In summary, females clearly have lower VO[2] max, and poorer scores on aerobic tests, than do

males.

32 The witness then turned to problems in predicting aerobic fitness from running times. He noted the individual

must first be motivated to give a maximal or near maximal effort. Secondly, the individual must be efficient at running.

An experienced runner can run faster than an inexperienced one, even though they both have the same VO[2] max.

Thirdly, he said, a good score on a timed run depends on pacing. Finally, he observed anaerobic energy can make a

substantial contribution to running performance. Anaerobic energy supports high intensity work for up to about twominutes. This energy, he said, is stored in the muscles and does not depend upon the lungs, heart or blood. Over

relatively short distances, such as 2.5 km, a person with superior anaerobic fitness can run faster than his/her aerobic

system will support. That would cause predicted VO[2] max to overestimate actual VO[2] max. The witness

summarized his views on that topic at page 5;

In summary, while directly-measured VO[2] max has been shown to be related to 2.5 km running

time for groups of individuals, there are a problems in predicting the VO[2] max of a particular

individual from his/her running time. For this reason, such running tests are best used as a rough

guide to a person's aerobic fitness, and to show improvement on a retest following aerobic

conditioning. Running tests which specify a pace (e.g., running on a treadmill, the shuttle run in

which a person runs back and forth a gym keeping pace with an audiocassette) essentially

eliminate the pacing problem. Other tests such as heart rate during stair stepping to a metronome

eliminate the motivation, pacing, and anaerobic problems. All tests have the efficiency problem.This will be discussed later.

33 Mr. Brown then dealt with the significance of the aerobic fitness of a slower 2.5 km runner. That does not

necessarily mean, he said, that the person has a lower aerobic fitness. If it does, it may have negative implications for

firefighting. He said it was obvious that a certain amount of aerobic fitness is needed for firefighting. He then turned to

Dr. Sharkey's report and the 1992 report of the University of Victoria group. He said it gave a clear picture of a long

work day with a sizeable portion spent doing physically demanding tasks under adverse environmental conditions. The

report concluded that the fitness required was 48 ml.kg-1.min-[1].

34 He then commented that there are a number of methodological and logical deficiencies in the reasoning which led

to that conclusion. Because of those deficiencies he did not agree with that finding for the following reasons.

35 First, he said, the individual might reduce his/her work rate so that he/she was working at the same percentage

VO[2] max as the rest of the (presumably aerobically fitter) crew. He conceded that would decrease the productivity of

the crew and might make it more difficult to contain a fire during initial attack. Or, another crew member might work

harder to compensate. If that crew member had a superior aerobic fitness, such compensation would be possible with no

risk to any of the crew. He noted, however, at page 6;

... if the other crew members are marginally aerobically fit and increase their workrate to

compensate for an aerobically deficient member, this would place the fitter crew members in

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greater jeopardy.

36 He went on to say that alternatively, the less aerobically fit individual might keep pace with the crew by working

at a higher percentage of his/her VO[2] max. If that were done it;

... would increase the probability of whole body metabolic fatigue. Fatigue would be increasinglylikely as the day progressed, and over a number of days or weeks of prolonged work at this

intensity. This fatigue would increase the susceptibility of the individual to illness and injury.

Also, fatigue might result in an error which would jeopardize the safety of the whole crew. (at

page 6)

37 Mr. Brown then suggested another scenario and that is the less aerobically fit individual would experience heat

loss. He noted that blood flow is needed by both the aerobic and heat loss systems. Substantial heat loss is needed

during moderately strenuous work, even in moderate (20[o]C) climates.

38 A final possibility, he said, is that a less aerobically fit individual could have sufficient skills and experience so

that there is no deficiency in individual or crew productivity or safety. He said he has observed that type of phenomenon

many times.

39 Turning to the question of whether the minimum VO[2] max of 48 ml.kg-[1].min-[1] is required for wildland

firefighting, the witness said "I don't know. This may be an appropriate standard". He went on to say, however, that the

materials he was provided for review did not present a sufficiently strong case. There are a number of deficiencies that

caused him to believe that standard has not been properly validated.

40 The witness then went on to discuss in detail the findings of the Sharkey et al study. In summary he found four

deficiencies that undermine, in his opinion, the aerobic fitness standard set out in that document. They are, he said;

- sample biased to only include those with predicted VO[2] max at least 45 ml.kg-[1].min-1

- aerobic fitness standard not set on basis of average work performance as were the

standards for the other three fitness tests; instead a "reasonable" standard was set,

apparently rather arbitrarily

- step test only explains 24% of variance in work performance

- missing data from the "hike" field test (at page 10)

41 Mr. Brown then turned to the two University of Victoria studies that gave rise to the 1992 and 1994 reports. He

criticized those studies at some length. In summary, he said, at page 14, they suffered from three main deficiencies;

- lumping students with forestry recruits in the

validation study

- using a different method and inconsistent

reasoning in setting aerobic fitness standards

compared with standards for the other fitness

tests

- probable overestimation of the oxygen cost offirefighting due to:

- predicting all-day pace from 15- or 20-minute simulations

- insufficient sampling of oxygen uptake during the simulations in the 1994 study

- elevation of heart rate due to arm work.

42 In cross-examination, when asked if he agreed that Dr. Brian Sharkey is a leading expert in the field, the witness

replied he did not know if that was so. He was not aware of the work of Dr. G.M. Budd. He conceded he has not read

any of the literature pertaining to firefighting. He observed that the methodology and procedure is generic and applies in

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all fields. When asked if firefighting is one of the most physically demanding jobs in the public sector, the witness

agreed it is. He was asked if it is necessary to set standards of physical fitness in order to ensure safety and effectiveness

of firefighters engaged in that work. He replied in the negative. However, he agreed conditionally that if appropriate and

correct standards are in place and have to be met by all firefighters he would expect women to do the same tasks as

men. The first task, he said, is where to set the standards. He agreed it was necessary to first find out what the job

involves.

43 With respect to the findings in the University of Victoria studies, he expressed the opinion that they do not give

enough information for anyone to determine if the standard of 50 VO[2] max is appropriate. He had objections to the

methodology and the conclusions reached in those reports. He also takes issue with the views expressed by Dr. Sharkey

which were adopted in those studies. He conceded that a run or some other field test was more cost effective in

measuring physical fitness than tests done in a laboratory.

44 The witness was shown Exhibit E-17 which is a paper on Cost Effective Selection of Firefighter Recruits prepared

by the Institute for Human Performance at Simon Fraser University of which he was one of the authors. He agreed he

recommended a run as a testing method. He agreed with counsel for the employer that at page 663 of the Simon Fraser

University paper, the authors accepted;

The well-validated Cooper 12-min run test (6.10) measured cardiovascular fitness. A minimum

passing standard was 2.816 m (1.75 miles) sets a standard over 50 VO[2] max, higher than the

standard recommended in the University of Victoria study.

45 The witness pointed out, however, that the Simon Fraser University study was concerned with groups of people. A

run is a good predictor for them but in the case of individuals, the test results can be off any where from 6% to 9%.

There is more error in the run than in other methods; e.g., stairs. One test, he said, is not a definitive measure of aerobic

capacity. When it was put to the witness that all other experts say that the most appropriate measurement is a run, Mr.

Brown agreed he is not in a better position than they are to give that opinion.

46 The witness was then directed to Exhibit E-16, which was Dr. Wenger's report in response to his report on aerobic

fitness and Ministry of Forest physical fitness tests. He agreed that in the case of Ms. Meiorin, she was highly motivated

but in a distressed state. He disagreed, however, with Dr. Wenger's conclusions with respect to the anaerobiccomponent. The witness agreed with Dr. Wenger's comments that while the standard of 50 VO[2] max was above

average, it was not an elite standard. He disagreed with Dr. Wenger's conclusions that females can pass the test "easily".

Some will be able to do so, he said, but many more will not because of the difference in genetic makeup between men

and women. When asked if it is not true that elite women athletes can reach 80-85 VO[2] max, he replied that would be

extraordinary. Elite university runners reach a VO[2] max of 65. In his experience, women never attain a VO[2] max of

80. He also disagreed with the statistics that properly trained women can meet the 50 VO[2] max standard in 35% of the

cases. He said he would "guess" it would be more like 10%. He conceded he did not have any statistics to support that

opinion.

47 I now turn to the evidence presented on behalf of the employer.

48 Mr. Gary Hartwick is the Assistant Director of Protection Program for the Ministry of Forests. Admitted as

Exhibit E-18 was a summary of the responsibilities and activities of the Protection Program as of January 26th, 1996.

The normal operating compliment during the fire season consists of 118 initial attack crews comprised of three people

each. There are 23 sustained action crews comprised of 20 people each. In addition, there are air tanker bases, regional

fire control centres, an air tanker dispatch centre, a fleet of 22 air tankers, 3 transport aircraft, 18 helicopters, 2 fire

equipment depots as well as primary and secondary lookouts, lighting location system sites and 203 fire weather

network station sites.

49 In order to meet the wildfire challenge, the witness said a large number of seasonal employees are hired to meet

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fluctuating fire suppression demands. The program strives to recruit highly motivated seasonal staff.

50 He went on to say that the mandate of the program is to attack and suppress wildfires by the use of fast initial

attack crews while the fire is small. That approach is 94% successful. He said unit crews are persons who deal with the

remaining 6% of fires. They are sustained action crews and their primary role is to suppress fires that can reach several

thousand hectares of land.

51 Mr. Hartwick commented on the grievor's evidence that the physical demands and dangers of firefighting are "not

that great". In his view, members of initial attack crews are involved in work that is very physically demanding and

potentially very dangerous. He disagreed with Ms. Meiorin's suggestion that experience counts more than physical

fitness. A physically fit, experienced firefighter is more productive. As to Ms. Meiorin's comments that she has never

been put in a dangerous situation where she had to run away from a fire, the witness said the object is to avoid such a

situation at all costs. Conditions can change very rapidly and the risk is always there.

52 The witness then outlined the history of the steps taken by the Ministry to measure the physical fitness of its

personnel. In 1988 the U.S. Forest Service Smoke Jumpers Test was instituted as the standard. That test was designed

by Dr. Sharkey and it is supported by most experts with very few exceptions.

53 Mr. Hartwick observed the step test was first introduced in the late 1980's for unit crews. Originally unit crews

were made up of casual hires in certain parts of the province on an as and when needed basis. Before then, there were no

fitness requirements for casual hires. The step test was an attempt to introduce a physical fitness standard and they were

given three days training. It allowed the Ministry to take casual hires on an individual basis and easily test them. The

smoke jumper's test requires a large group of persons to be involved in the test and there are time constraints. It became

the view of the Ministry that the smoke jumper's test gave a reasonable measurement of physical fitness and it was used

in training personnel.

54 The witness then identified Exhibit E-2 which was a physical fitness program introduced by the Ministry on

October 10th, 1990. It included a run of 2.5 kilometres in 11 minutes or less.

55 The witness then referred to a report prepared by Dr. Sharkey for counsel for the government in a case that was

heard by Arbitrator Hugh G. Ladner, Q.C. between these parties the Bouchard et al Grievance, [1991] B.C.C.A.A.A.No. 146, award dated June 7th, 1991.

56 I observe at this point that Arbitrator Ladner upheld the physical fitness tests administered to the helitack initial

crew in the Cariboo Forest Region. Included in the test for that crew was the 2.5 kilometre run in 11 minutes or less.

The employer there relied heavily on the evidence of Dr. Sharkey whom Arbitrator Ladner described as "a widely

acknowledged expert in the development, validation and institutionalization of job related fitness tests for wildland

firefighters" (at page 5). With respect to the physical fitness tests the grievors were expected to pass, Arbitrator Ladner

adopted the opinion expressed by Dr. Sharkey;

Taken as a whole, the standards seem both reasonable and consistent with the results of our

criterion-related field study. They are especially appropriate for an elite crew that is considered

the first line of defense in the fire control effort. The standards are well within the reach of

motivated men and women interested in this strenuous form of employment. (emphasis added)

Arbitrator Ladner then noted at page 7; "The union does not challenge Dr. Sharkey's evidence". Later, at page 8,

Arbitrator Ladner observed;

An Employer is entitled to establish reasonable qualifications for a job. A corollary of this

proposition is, I believe, the proposition that an employer is obligated to provide employees with

a reasonable opportunity to establish that they can meet those qualifications.

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57 The witness then referred to an award between these parties by Arbitrator Vince Ready, the Pilas and Williams

Grievances, dated February 23rd, 1995, which incorporated a Memorandum of Settlement of the grievances which, he

said, clarified the issue. In particular, the settlement dealt with the system of recall of auxiliary firefighters under article

31.05 (b) and the opportunities they would have for re-testing for physical fitness if they failed a test.

58 Mr. Hartwick said after the Ladner award was handed down, the employer contracted with the University ofVictoria to examine fitness standards for firefighters. The employer wanted the university to look at physical fitness

tests for suppression activities to see if other methods might be more appropriate and if the smoke jumper's test was the

best one available. As a result of their studies, they came up with the Bona Fide Test. Old employees who failed the

Bona Fide Test could take the test that applied to them when they were first hired.

59 The witness then turned to forest service statistics involving women firefighter applicants. In 1995 of a total of

800 to 900 initial attack crew personnel, 100 to 150 were females. 35% of females passed the Bona Fide Test the first

time they took it. 65% to 70% of males passed the first time. For people who failed either the shuttle run or the 2.5

kilometre run, it would not have been practical to have them undergo a laboratory testing procedure, he said. It would

be impractical because of the spread of over 50 locations of initial attack crews and further, testing would be required

three or four times per year. It would create operational problems.

60 The witness commented on the union's suggestion that there be different standards for women because of

physiologial differences with men. He said in his experience that would create a morale problem. Tests that have been

adopted for the initial attack crews are appropriate, necessary and are applied consistently. It is a single standard for

everyone. If different standards were adopted for women it would create animosity. Finally, Mr. Hartwick commented

that Workers' Compensation Board statistics of the costs of injuries, since the Bona Fide Test has been established, have

dropped considerably. From a high of $1.5 million dollars per year in the 1980's they now amount to less than

$100,000.00 per year.

61 In cross-examination, the witness was shown employer's Exhibit E-18 and he was asked of the 118 initial attack

crews, which would consist of 354 persons, how many were women? He replied 20 to 25. He said further, that he has

had experience as a logger and in his opinion there is a higher degree of danger involved in firefighting.

62 I now turn to the evidence of the expert witness tendered by the employer. He is Dr. Howard Wenger, who is aProfessor in the School of Physical Education at the University of Victoria. He was involved in the preparation of the

1992 and 1994 reports which led to the adoption of the Bona Fide Occupational Test by the employer.

63 Dr. Wenger has been a member of the School of Physical Education at the University of Victoria since 1980 and

has been a full professor since 1983. His speciality is exercise physiology as applied to sport and occupational tasks and

fitness. He had a role in the first study done by the university for the employer in 1992. He helped formulate the

suggested testing procedure. He was directly involved in the 1994 report with analysis and documentation.

64 He has researched firefighting and physical fitness. The leading experts in the field, he said, are the Sharkey

group, an earlier Bernard California study and the Budd group in Australia. Filed as Exhibit E-21 is the abstract entitled

Stress, Strain and Productivity in Australian Wildfire Suppression Crews authored by Dr. G.M. Budd and others. He

noted the following preliminary conclusion reached in the study;

This is extremely strenuous work, comparable to the heaviest industrial and forestry tasks. It

imposes a need for firefighters to be fit and healthy, and to wear clothing of a kind that will let

them dissipate such massive heat loads. (at page 2)

65 The witness then went on to say the mandate in 1992 for the university was to determine a Bona Fide

Occupational test for the Ministry of Forests. It was to develop minimum standards for the safe and effective

performance by firefighters of the tasks associated with wildfire firefighting. He said human rights legislation was at the

forefront of the concerns of the group. They were sensitive about setting the standard too high. They were concerned

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that the establishment of a cut-score, if too high, could result in false negatives. If the cut-score was too low, that could

result in false positives.

66 In considering the measures of what was necessary for physical fitness standards, they talked to firefighters about

their jobs; what they had to do and the nature of their tasks. They then designed a series of tests to isolate the

components involved in firefighting; i.e., hose pull, pump carrying to simulate job conditions and then to verify thecomponents with the firefighters themselves. Dr. Wenger then testified as to the nature and the demands of the tasks

faced by firefighters. To measure energy expenditure, they examined the VO[2] standard in relation to heart rate and

energy costs. It had to be done directly in the field. It was also important to measure needed productivity for a

firefighter working at an all day pace. Base validity was obtained from experienced diggers. That led to a decision as to

what is reasonable - not the very best, but what is the effective amount of energy required. The study established the

reasonable cutline of 48 VO[2]. However, 48 was the figure under ideal conditions but they do not always exist.

Therefore, the cutline was moved to VO[2] 50. That decision was arrived at on an objective basis based on demands of

the job and the environment in which firefighters work.

67 Having established the VO[2] 50 standard, it was then necessary to find a test to measure it. The group, he said,

designed situations that truly simulated job requirements to make the test job specific. They took into account all the

variables identified by Mr. Brown in his report, as best they could.

68 At the end of the day, the University of Victoria group decided the test for VO[2] max would be the shuttle run.

That was chosen because it was felt what was needed, was a predicted test. The smoke jumpers 2.5 kilometre run is

such a predictor test but establishing pace is a problem with it. In the judgment of the group, the highest predictor was

the shuttle run where pace is set by a metronome. The stage 10 shuttle run standard measures VO[2] max at 50. The 2.5

kilometre run is a bit lower, said Dr. Wenger, being 48 to 49.5 VO[2] at 11 minutes. He observed the Sharkey group

standards include the 2.5 km. run in 11 minutes.

69 Dr. Wenger said, in general, women are less able to do aerobic work than men. VO[2] 50 is above average but it is

not an elite standard. In his view, the average for females is 30 to 40 and for males - 40 to 45. That depends on the

population and sampling methods. He did not disagree that it is more difficult for women to meet the 50 standard than

men. Based on previous studies, personnel who train for a period of four months to one year are able to change the

range of VO[2] from 5% to 25%. He was of the further opinion that most men and women can meet the 50 standard ifthey are healthy including all men in the age range 20 to 35 years. However, he conceded some women would have

great difficulty but most females, a large percentage, could meet the standard. He noted further that the older one gets,

the more difficult it would be to meet the standard.

70 The witness then commented on the opinions expressed by Mr. Brown that females who failed the 2.5 km. run

within 11 minutes should be tested by direct means. He said quite sophisticated equipment would be involved - at least

$50,000.00 per unit. It is not a question of lowering the standard, just measuring it more accurately. A direct test would

be accurate within 1% to 2% while there is a 5% factor in the predicted tests, like the 2.5 km. run. He agreed the

problem of pacing, which is not a factor in the shuttle run, could be a deficiency in the 2.5 km. run if the candidate was

running too fast or too slow. However, training over time would help overcome that problem. The employee would "get

smarter" and learn how to pace him or her self. Dr. Wenger also discussed the anaerobic component. It is a non-VO[2]

supplier of energy.

71 Dr. Wenger commented further that no firefighting department, to his knowledge, is using direct testing to

measure VO[2] max. The 2.5 km. run is still being used as is the step test. However, the step test has inherent flaws.

There are variabilities because the tests are not precisely accurate. But that variability does not depend on sex

differences. In the step test, the shorter step height is an attempt to adjust for that. While the procedure is different, the

standard is the same for men and women performing the step test.

72 I now turn to the cross-examination of the witness by counsel for the union.

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73 Dr. Wenger conceded the University of Victoria group did not assess female firefighters who did poorly on the

aerobic test with their actual job performance. As to the issue of "pace", he said heart rates were measured to see if the

work can be sustained over a long period of time.

74 The witness's attention was drawn to the 1994 report of the University of Victoria group. In particular, the section

dealing with Standard Selection as appears at pages 24 and 25;

Standards for both fitness and job related tests are selected by determining a cut score. The cut

score is the minimum test standard that must be met by all recruits or incumbents in fulfilling a

B.F.O.R. There is no single method of determining cut scores but its' establishment should be

dependent upon the available labour pool, desired level of productivity, safety and fairness to

different genders and minorities (Jackson, 1994).

Jackson (1994) states that the most important concern when setting a cut score is to determine

how well candidates are classified for a given test. That is, what percentage of individuals whose

test scores fall below the cut score can perform the job or task successfully (True Positives).

There will always be some misclassification because tests cannot be perfectly valid, but the testand associated cut score should be reasonably "sensitive" and "specific". Test sensitivity is the

percentage of those who cannot do the job and miss the cut while test specificity is the percentage

of those who exceed the cut and can do the job (Jackson, 1994). Judging job performance in order

to analyze the appropriateness of cut scores can be difficult in a sample that has already been

hired (and fitness screened), since the percentage of individuals that cannot adequately perform

the job may be low. In assessing the adequacy of the B.C.F.S. standards this is a difficulty,

however it can be overcome to some extent by quantifying the physiological demands of the tasks

themselves, and looking for clusters or gaps in performance of the fitness tests and standards.

The witness agreed that it is necessary to weigh in the factor of fairness (social conscience). However, he said, if the

level is lowered, it may result in having more false negatives. He agreed further, that it is necessary to have criteria that

give an objective measurement. He agreed with counsel for the union that if the cut score failed 80% of the current

active employees, it would not be consistent with normal expectations. His attention was then directed to pages 5-6 ofthe 1994 University of Victoria report where the following appears;

Only 20% of the District Unit Crew members were able to meet the aerobic fitness standard for

the 20m Shuttle Run (Stage 10) set from the 1992 study (VO[2] max = 50 mL.kg[-1].min[-1)

while 100% of the Branch Unit Crew members reached this criterion (Figure 2).

Dr. Wenger conceded that there are shortcomings in all tests.

75 The witness's attention was then directed to the impact of training and in particular, to Mr. Brown's testimony that

training can only increase aerobic capacity anywhere from 5% to 25%. He agreed there are no published studies that

would indicate training over a period of time would increase capacity above 30%. He expressed the view that in his

experience, a firefighter will continue to improve to the genetic ceiling. Male and females are both able to meet the

VO[2] 50 standard. He said all men can meet that standard and almost all women. He was asked, as a scientist, if he had

studies to support his opinion. He replied that he was asked for his opinion and he based on his experience, not

scientific studies.

76 Dr. Wenger conceded further that bushland firefighting in Australia, the subject of the Budd studies, was different

from forest firefighting in British Columbia.

77 Turning to the issue of safety and the cut score recommended by the University of Victoria studies, he was asked

if there could be a safety risk with respect to the need to exit a fire quickly. He replied in the affirmative and stated that

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productivity is also a matter of concern but they are two independent things. He said the study did not look at running

away from a fire as a VO[2] standard. As to the variabilities encountered in the use of the 50 VO[2] max standard, Dr.

Wenger agreed that sometimes the variabilities can be quite large - 10% or higher. However, he said they tried to

minimize them. The more times the test is given, the more it tends to get to a firefighter's real aerobic fitness score.

78 The next witness called by the employer was Mr. Bob Beugelan, who is a Fire Protection Officer. Prior to takinghis current job a year and one-half ago, he was the Resource Officer Protection in charge of the Golden Protection

Program from December, 1990 to February of 1995.

79 He said that in the years 1992 and 1993, it was not a requirement that Initial Attack Crew members pass the

physical fitness tests. That was because first, he was not sold on the tests themselves. In addition, there were several

ongoing grievances, including Bouchard et al and finally, new tests were on the way. It was his decision not to make the

tests mandatory and await the new tests. Initial Attack Crew members were warned of the new tests as were new hires.

If a firefighter was reasonably fit and with training, he or she should have no problems passing the new tests. He

confirmed his letter of January, 1994 to all employees on the recall list advising them they would have to pass the new

tests. As well, he telephoned all Initial Attack Crew members advising them of his offer to use equipment for training

purposes. The grievor took him up on his offer. He confirmed she telephoned him in the spring of 1994 and told him of

her knee problems stemming from an old ski injury and her concern about doing the shuttle run. He told her not to betoo concerned because she could take the 2.5 km run as an equivalent to the shuttle run. However, later he was told by

forestry department officials that he was in error by offering one or the other test. All Initial Attack Crew members

would have to take the new Bona Fide Occupational Fitness Test, including the shuttle run. It the person could not do

the shuttle run, then he or she could take the 2.5 km run.

80 The witness said the grievor did not express any concerns about gender based tests until after she failed the runs.

Nor did she ever complain about how or where the tests were administered to her. She wanted more time. Ms. Meiorin

was of the opinion that women should be allowed 12 minutes to do the 2.5 km run. In effect, she was asking him to

change the standard and he had no authority to do so.

81 Ms. Meiorin was not laid off after she failed the tests on May 4th and 11th because he did not want to lose her.

She was one of his better employees. She had a very good demeanour, and did a fair quantity of work. She was not the

best firefighter under his supervision but she was far from the worst. In addition, she held a First Aid Certificate and hefelt a sense of loyalty to her.

82 The witness went on to say that after doing the run in 11 minutes 8 seconds, with training, she should have been

able to meet the 11 minute standard. The crews were not busy at that time and that is why he gave her a conditional

pass. However, he told her she would have to pass her next re-test. The re-test was for the whole crew. He fully

expected she would pass. She took the test on June 8th and failed. She was 30 seconds slow.

83 The witness explained there was no track in Golden so he let the crew chose their own. They decided to use the

dike which is a gravel road behind the District Forestry office. The length of the run was measured at 1.25 km out and

back. It was used only for the test she took on May 4th. Because of traffic problems, an alternate site was chosen and

that was at the Golden, B.C. airport. It is paved except for 20 to 30 meters and it is relatively flat. It was also measured

the same way; 1.25 km out and back. However, the track at the airport was re-measured on a tight chain basis. It was

found the run was 40 meters short. Ms. Meiorin was advised of that a couple of days before she took her final test. She

had been practicing on a measured 2.5 km running track in Revelstoke. She was allowed one hour per day for training

or equivalent work in the spring of 1993. As well, she was given passes to a local fitness centre. When he told her the

track was 40 metres short he could not recall anything special about her reaction. He conceded, however, she was upset

with the whole process. She failed the test which he administered. He said further, that Ms. Meiorin had no criticism

whatsoever about the administration of that test. The first time he heard of her complaints was at this arbitration

hearing. If she had complained at the time she was stressed because her job was on the line, he would have given her

another chance. He did not want to lose her. He had the authority to do so based on extenuating circumstances.

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However, there were no such extenuating circumstances in her case. Her only complaint was about the biological

differences between men and women and he had no authority to change the standard on that basis.

84 In cross-examination, the witness conceded that after her layoff, Ms. Meiorin was given a letter of

recommendation. He agreed with it and said she was a very good employee and used him as a reference. The fact that

she held a First Aid ticket was a big factor when she was first hired.

85 In response to further questioning, with respect to her failure on the June 8th test, he said she did not complain to

him about headwinds. If she did complain to others it was not passed on to him. He said Ms. Meiorin was generally

upset during the entire seven days in June. She was in some state of emotional upset and that was true also during the

month of May.

86 The witness was then questioned about contractors who provide forest firefighters for the Ministry when it is

necessary to bring in extra personnel. He agreed there is no physical fitness tests for them except for those whose jobs

are primarily on initial attack. They require only minimum training because they are not on the front line.

87 With respect to native unit crews, the witness said that since 1994 new hires who failed the Bona Fide

Occupational Test are allowed to fall back on the step test. He conceded that in 1994, when casual hires were used to

fight forest fires on an emergency basis, no physical fitness tests were required of them but they were not used on initial

attack crews.

88 The witness conceded he has never had occasion to run out of a fire. He tries not to put people at risk. However,

he has had occasion to evacuate crews.

IV

89 I now turn to a summary of the extensive written and oral arguments of counsel as presented to this board of

arbitration.

90 Mr. Curry commenced by asserting the grievor suffered adverse effect discrimination when she lost her job

because she ran 2.5 km in 11 minutes, 49 seconds, being 49 seconds over the standard established by the employer. That

standard had a discriminatory effect on Ms. Meiorin because of her gender. The aerobic capacity of most women is less

than that of most men. The standard of 50 VO[2] max is achievable by most men but not by most women. The fitness

test, therefore, denied Ms. Meiorin an equal opportunity for employment on an Initial Attack Crew.

91 Next, argues counsel for the union, the employer was unable to prove accommodation to the point of undue

hardship because no effort was made to adjust the cut score of 50 VO[2] max to a level achievable by more women. The

cut score of 50 VO[2] max was never validated against the job performance evaluations of women firefighters who

participated in the test sample. Finally, failure to meet the cut score was never proven to cause a safety risk or to mean

that an employee could not work productively.

92 He points to the evidence that Ms. Meiorin is a fit woman who engages in strenuous logging work and physically

demanding extracurricular activities. In her previous employment on the Initial Attack Crew, she received good work

performance assessments. Here, we have a fit female employee who performed well on the job but nevertheless wasterminated because of a near miss on an invalidated fitness test. There is no question, he says, that women are adversely

effected by the fitness test standard; nor can there be any question that Ms. Meiorin can be easily accommodated by a

number of methods, including allowing women to continue working if they fall within the tests margin of error.

93 In support of his assertion that women are adversely affected in the instant dispute, Mr. Curry turned to the

decision of the Supreme Court of Canada in Ontario Human Rights Commission and O'Malley v. Simpson-Sears Ltd.,

[1985] 2 S.C.R. 536, which is referred to in a subsequent decision of the Court in Central Alberta Dairy Pool v. H.R.C.

(Alta.), [1990] 2 S.C.R. 489, (1990) 90 CLLC 16241, at page 16, 247. The employment rule as to the fitness standard

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instituted by the employer in the instant case has a discriminatory effect on women. It imposes a penalty or a restrictive

condition not imposed on men and unfairly burdens most women with an unreachable standard.

94 Counsel then argued the tests have a discriminatory effect on women because women are less able to do aerobic

work than are men because of different physiological characteristics when compared with men. Being physiologically

less able to do aerobic work, most women have a lower VO[2] max than most men. That proposition has not beendisputed by the employer. Thus, fewer women will be able to achieve the 50 VO[2] max required on the fitness test

because of physiological differences. He points out that out of a work force of 354 Initial Attack Crew members, only

approximately 20 to 25 are women. The 1995 female applicants pass rate for the Initial Attack Fitness Test was 35%

compared to the male applicants pass rate of between 65%-70%. Therefore, women are clearly adversely affected by

setting the fitness standard of 50 VO[2] max.

95 Counsel then turned to the evidence of Dr. Wenger on the effect of training in increasing the overall capacity of

women to meet the 50 VO[2] max standard. While Dr. Wenger testified in chief that most women can do so with

training, in cross-examination he admitted his statement was not based on any scientific studies or published papers but

on his personal observations of trained athletes. That, he said, is contrasted with Exhibit U-22, the American College of

Sports Medicine's Position paper, which noted that depending on the quantity and quality of training, improvement in

VO[2] max ranges from 5% to 30%. That evidence too has not been disputed by Dr. Wenger. Thus, if the averagewoman's aerobic capacity is 35 VO[2] max then the outside benefit from training is a 30% increase. Therefore, the

potential the average woman has for increasing her aerobic capacity is up to a VO[2] max of 45.5. If the average man

has an aerobic capacity of 43 VO[2] max and his maximal benefit from training is a 30% increase, he could increase his

aerobic capacity to 56 at the outside. Counsel argues that contrary to Dr. Wenger's evidence, the scientific evidence

presented to this board establishes that most women cannot meet a VO[2] max standard of 50 given the lower starting

VO[2] max for females and given the maximum increase of 30% if properly trained. Thus, women as a group are

affected differently by the 50 VO[2] max than are men. That being the case, the O'Malley definition of adverse effect

discrimination is met.

96 Counsel then turned to the collective agreement between the parties and noted they subscribed to the principles of

the Human Rights Act and it is not in dispute that the employer's policy of employment equity acknowledges its

commitment to providing a work environment free of any form of adverse effect discrimination. It also acknowledges

its obligation to reasonably accommodate employees. Notwithstanding that policy, the employer has imposed a fitness

standard that adversely affects women applicants in the traditionally male dominated field of wildland forest fighting. It

has thereby failed to meet its obligations under either the Human Rights Act, the collective agreement or its own

employment equity policy.

97 Next, argues Mr. Curry, reasonable accommodation without undue hardship is possible in this case. The

importance of the duty to accommodate where adverse effect discrimination occurs appears in the Supreme Court of

Canada decision in Syndicat de l'Enseignment de Champlain v. Commission Scolaire Regionale de Chambly, [1994] 2

S.C.R. 525, 94 CLLC 16246 at page 16,252. The proposition that can be gleaned from that case and the Court's decision

in O'Malley is that there must be reasonable accommodation for employees adversely affected by a work place standard

if the essential aim of human rights legislation is to be fulfilled and further, that the duty to accommodate is a

fundamentally important aspect of human rights legislation and an integral part of the right to equality in the work

place. In the instant case, the employer has done nothing to accommodate Ms. Meiorin or other female Initial AttackCrew applicants.

98 Counsel for the union then went on to discuss the relationship between bona fide occupational requirements and

the duty to accommodate. He noted the relationship was reviewed in Central Alberta Dairy Pool, supra, which declined

to follow an earlier Supreme Court of Canada decision in Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R.

561, that held a bona fide occupational requirement defence applied in cases of adverse effect discrimination. Based on

that jurisprudence, the employer is not entitled to raise the argument that the fitness standard here is a bona fide

occupational qualification or requirement which relieves it of its duty to accommodate Ms. Meiorin or other female

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Initial Attack Crew applicants. An employer's defence of a bona fide occupational requirement cannot be available in an

adverse effect discrimination case.

99 Counsel for the union then suggested Arbitrator Ladner's decision in the Bouchard Grievance, supra, is not

applicable in the instant dispute. The issue here, he argues, is whether the employer, once the fitness test discriminated

against women becoming Initial Attack Crew members, sought to accommodate them. The employer's fitness test has ademonstrated adverse effect on women in that it disproportionately disqualifies them from employment based on gender

related differences in physiology. Further, it has not proven it would suffer undue hardship by accommodating the

grievor through altering the test or the cut score for women. The test and issues here are completely separate from the

issues that were before Arbitrator Ladner, who in that case, was faced with the issue of whether the employer's fitness

standards had a reasonable relationship with the work to be performed.

100 Mr. Curry then addressed the issue of accommodation to the point of undue hardship. He urged such

accommodation is mandatory and once the union has proven the employer's work rule has a discriminatory effect on the

grievor, it has established a breach of the collective agreement; subject to the employer's defence that reasonable

accommodation is not possible without undue hardship. In these circumstances, Central Alberta Dairy Pool, supra,

established that the onus is upon the employer to show that it has taken reasonable steps toward accommodation of the

employee to the extent of not causing undue hardship. There is no employer evidence before me, he argues, of unduehardship. The fitness test was not properly validated. Safety and productivity concerns arising out of the cut score are

highly speculative. Thus, the employer has failed to meet its burden of proving accommodation to the point of undue

hardship. There is no evidence that any of the factors outlined in Central Alberta Dairy Pool, which should be

considered where an employer is required to accommodate to the point of undue hardship, were such that they would

outweigh the obligation to provide Ms. Meiorin with an equal employment opportunity.

101 As to the effect on other employees' morale, that was one of the factors considered in the Central Alberta Dairy

Pool case, supra. Mr. Hartwick testified the morale of the Initial Attack Crews would be negatively affected if a

different standard was created for female applicants. That question was addressed by Mr. Justice Sopinka, writing for

the Court in Central Okanagan School District No. 23 v. Renaud, (1992) 95 D.L.R. (4th) 577, where he observed that

more than a minor inconvenience must be shown before an employee's right to accommodation can be defeated. The

employer must show actual interference with the rights of other employees, on a substantial, not trivial basis, which

would result from the adoption of the accommodating measures. Further, other employees' objections based on attitudes

inconsistent with human rights are an irrelevant consideration. Mr. Curry noted there was no evidence of low morale

due to Aboriginal Unit Crews being allowed to do the step test. The effect on male Initial Attack Crew members' morale

of a fitness test accommodation for women is irrelevant, or at most, of minor importance.

102 Turning to the issue of safety, counsel for the union suggested the evidence of Dr. Wenger in that regard

amounted to no more than an assertion that if employees had to run out of a fire, they would need that set level of

aerobic fitness. However, Mr. Beugelan's evidence that in all his 20 years of firefighting experience he had never had

occasion to run out of a fire and that he considered it unsafe to run on a fire line, is further support for the view that the

safety consideration, insofar as it relates to a 50 VO[2] max aerobic standard, is not relevant. To demonstrate

accommodation to the point of undue hardship, the employer would have to prove that putting Ms. Meiorin on Initial

Attack Crew, when she could not run 2.5 km in 11 minutes, constitutes an unacceptable safety risk to her and to other

Initial Attack Crew members as well as the general public. The employer did not and could not have proven thatproposition. Counsel then cited Woolverton v. B.C. Transit, (1992) 19 C.H.R.R. D/200, a decision of the B.C. Human

Rights Council as authority for the proposition that a certain level of safety risk does not in and of itself amount to

undue hardship. That was a factor that was not considered either by the employer or the University of Victoria team.

Nor did they consider that experience makes an employee a safer worker. It is not an undue hardship for the employer to

accommodate aboriginal crew rehires, and it cannot be an undue hardship to treat adversely affected women in a similar

fashion.

103 Next, counsel for the union turned to possible ways the employer could accommodate the adversely affected

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grievor short of undue hardship. It would not be inappropriate, he argued, to change the 50 VO[2] max standard because

it is set higher than is realistically or reasonably related to the performance of wildland forest firefighting, and therefore,

it cannot be a valid safety requirement.

104 He then turned to the false negatives inherent in the margin of error on measuring aerobic capacity from a

running test. Dr. Wenger agreed the margin of error was from 5% to 10% which, in effect, means that persons who runthe test in 11 minutes have a VO[2] max range of anywhere from 45 to 55. Ms. Meiorin is in that range and does her job

productively and safely. The employer cannot prove she was an unsafe or unproductive worker because she is a false

negative. A false negative is someone who can do the job but fails the fitness test. It cannot seriously be argued that Ms.

Meiorin could not do her job. Therefore, a reasonable accommodation which would not result in any kind of hardship to

the employer would be to allow women to continue working if they fall within the margin of error.

105 Counsel then went on to discuss the process for establishing cut scores in 1992 and 1994 by the University of

Victoria group and suggested the evidence of Mr. Brown that the employer's estimate of oxygen costs in the work

simulations was faulty. I do not propose to discuss that evidence in any detail.

106 Finally counsel challenged the evidence of Dr. Wenger and his reliance on the Jackson article "Pre-Employment

Physical Evaluation" as a reference in both the University of Victoria 1994 report and his report prepared for thishearing. Finally, on his primary arguments, counsel for the union suggested that reasonable accommodations without

imposing undue hardship on the employer could include women receiving a pass on the test if they score within the

margin of error, that they should receive a better pre-season training program, that they should be allowed a choice of

other methods of indirectly proving their aerobic capacity, or that they be offered the step test. He urged a lower VO[2]

max cutoff of 45.5 be established for all women applicants and the test standards be adjusted accordingly.

107 Mr. Curry summarized his argument by observing that Ms. Meiorin consistently performed well as an Initial

Attack Crew member in the past. Her continuing high fitness level, as demonstrated by her current employment duties

in the physically demanding logging industry and by her vigorous athletic recreational activities, is such that she is

entirely capable of safe and proficient performance in the initial attack duties no different from what she has performed

in the past. There is no evidence of any efforts on the employer's part to accommodate her; nor is there any evidence of

any undue hardship which such accommodation would cause it. On that basis, he urges the grievance be upheld and that

Ms. Meiorin be reinstated with payment of back wages, because of the employer's failure to make any reasonable effortsto accommodate her.

108 I now turn to the arguments advanced by counsel for the employer.

109 Mr. Gall asserts first, that forest firefighting is physically demanding, difficult and dangerous work. For this

reason, only physically fit people are hired to do the work, both for their own safety and the safety of others. The union

says the 50 VO[2] max standard is not reasonably necessary. However, he urges the issue has already been determined

in the Bouchard case where Arbitrator Ladner upheld the employer's right to impose the so-called smoke jumper

physical fitness test, which includes a 2.5 km run in 11 minutes or less. Further, the union did not challenge the

employer's expert evidence in that case which confirmed the reasonableness of the physical fitness requirements it has

imposed for forest firefighters.

110 Subsequent to the Bouchard case, counsel notes the aerobic fitness standard has been re-examined by a team of

experts from the University of Victoria who have confirmed the 50 VO[2] max standard is necessary for forest

firefighters. While Mr. Brown had some doubts about the methodology of the University of Victoria team, he himself is

not an expert in this area. By his own admission he has never examined the issue of what the physical fitness standard

should be. Nor has he read literature on the subject beyond the University of Victoria studies and Dr. Wenger's report.

Mr. Brown, however, readily conceded in his report that the 50 VO[2] max standard may be accurate. Thus, his

evidence does not cast any real doubt on the conclusion reached in the Bouchard case, as confirmed by the University of

Victoria team as well as studies in other jurisdictions.

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no studies or papers that dispute Dr. Wenger's opinion.

119 As to the 1978 American College of Sports Medicine's position paper on the recommended quantity and quality

of exercise relied upon by the union, he suggests that first, the paper does not say that most women cannot meet a 50

VO[2] max standard. Dr. Wenger testified the ranges of improvement quoted in that paper are based on averages in that

they track the average improvements of groups of individuals. According to his testimony, the improvements inindividual cases can be greater than 30% in a six to twelve month period and that average, as well as individual gains

and improvement, will increase over a longer period of time.

120 As to Mr. Brown's questioning of the methodology of the University of Victoria team establishing the 50 VO[2]

max standard, he notes Mr. Brown has done no studies on this matter and can point to no studies that contradict the

University of Victoria team's conclusion. Nor has Mr. Brown read any of the literature on the setting of physical fitness

standards for forest firefighters. Had he been familiar with it, he would have been aware the conclusions of the

University of Victoria team are consistent with those of other leading experts in the field who have examined the issue

including Dr. Sharkey in the United States and Dr. Budd in Australia.

121 Mr. Gall then analyzed Mr. Brown's concerns about the University of Victoria studies including issues of pacing,

the method of measuring gas samples, estimates of oxygen costs, etc. However, I do not find it necessary to review thatargument further for reasons that will become clear later on in this Award.

122 Counsel then turned to the matters raised by the union about the margin of error or variability of a physical

fitness test. If the variability or margin of error is 10%, for example, someone who runs 2.5 km in 11 minutes will have

a VO[2] max score within the range of 45 VO[2] max to 55 VO[2]max. If one accepts the argument of the union that

women who come within the margin of error should be passed, that would effectively make 45 VO[2] max the required

standard for women. However, if the woman does the 2.5 km run in a time which equates to 45 VO[2] max, there is still

a 10% variability factor. That means her actual score would be between 40 and 50 VO[2] max. Thus, at the top end of

that woman's range, the required standard of 50 VO[2] max would be met. However, her real score could be 10% lower

or 40 VO[2] max. As Dr. Wenger testified, that would create an unsafe situation and that is why the required standard

cannot be reduced by the variability factor or margin of error or any particular testing mechanism. He also notes Dr.

Wenger's testimony that the more times a test is taken, the less the variability factor or margin of error. Further, counsel

argues, no issue has been raised in this case about the physical fitness test themselves being discriminatory. The sametests are given to everyone. There is no bias in the tests. The variability that exists applies equally to everyone who

takes it. The sex of the person does not affect the variability.

123 Next counsel for the employer observes that Ms. Meiorin trained for the 2.5 km run both before and during her

employment and in particular, before the 1994 season and while she was working in 1994. On no occasion in her

training over the years was she ever able to do the 2.5 km run in less than about 11 minutes 30 seconds. After being

recalled to work in 1994, she attempted on four occasions to pass the 2.5 km run but the closest she got was 11 minutes

8 seconds on a course that was 40 meters short. Clearly, she was not able to meet the required VO[2] max standard.

Further, at no time until shortly before this hearing did she express any dissatisfaction with the administration of the

test. Her complaint to Mr. Beugelan was not about the administration of the test, but that there should be a different

standard for women. The fact of the matter, he urges, is that she had four failed attempts with training and that proved

she could not pass the 2.5 km test, at least not at that time or without further training. That was so regardless of howmany times she tried it. She was given every opportunity to pass the physical fitness test, more opportunities, in fact,

than is required under the agreement negotiated between the union and the employer, which was the subject matter of

the decision of Mr. Ready in the Pilas and Williams Grievance, supra. Given her consistent failure to do the 2.5 km run

in 11 minutes or less it cannot be said she came within the margin of error for the 2.5 km run. The variability factor of

margin of error is reduced the more times the run is attempted. Thus, it is clear from her repeated attempts, including

her training runs, that she could not meet the required 50 VO[2] max standard. That is the reason, counsel suggests, as

to why she is seeking to have the standard reduced for women.

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124 Mr. Gall then turned to an examination of the Human Rights Act and the law on discrimination in Canada. He

suggests this case raises a number of fundamental issues regarding the nature and ambit of human rights protection in

Canada, some for the first time.

125 He starts with the following premise. If the aerobic fitness standard set by the employer and the physical fitness

standard used to assess whether employees meet that standard together constitute a reasonable method of evaluating theability of forest firefighters to perform their duties safely and efficiently, then the requirement that all forest firefighters

take and pass the test cannot be said to be discriminatory. To hold otherwise would be to distort the principles of human

rights protection which have developed in Canada.

126 He argues the union has failed to raise even a prima facie case of discrimination. That is because the fitness

standard is reasonably necessary given the nature of the job. It is applied equally to men and women. Further, the

physical fitness test is a reasonable measure of whether each individual meets that standard. Secondly, and in the

alternative, Mr. Gall argues that if the standard is prima facie discriminatory, it is submitted that it is nonetheless

reasonable and justifiable as a Bona Fide Occupational Requirement ("BFOR"). Finally, and in the further alternative, if

a BFOR or analogous defence is unavailable, with the result that the government is under a duty to accommodate

women like Ms. Meiorin who are unable to attain the required standard, then the accommodations requested by the

union, all of which essentially come down to reducing the physical fitness standard for women or assessing themthrough less accurate testing procedures, would cause the government, its employees and the public at large undue

hardship. To reduce the fitness standard for women would result in persons with inadequate fitness levels performing

the physically demanding and dangerous work of forest firefighting which would result in an unacceptable safety risk. If

the fitness standard is reasonably necessary for the safe and efficient performance of the work and the test reasonably

measures whether each individual's fitness level meets that standard, then it cannot be unlawful for the employer to set

that standard and employ that test, regardless of the physiological differences between men and women which makes

the standard somewhat more difficult, on average, for women to meet.

127 He then turns to the definition of discrimination as enunciated in Andrews v. Law Society of B.C., (1989) 56

D.L.R. (4th) 1, where the Supreme Court of Canada defined discrimination, at page 18;

I would say then that discrimination may be described as distinction, whether intentional or not

but based on grounds relating to personal characteristics of the individual or group, which has theeffect of imposing burdens, obligations or disadvantages on such individual or group not imposed

upon others, or which withholds or limits access to opportunities, benefits and advantages

available to other members of society. Distinctions based on personal characteristics attributed to

an individual solely on the basis of association with a group will rarely escape the charge of

discrimination, while those based on an individual's merits and capacities will rarely be so

classed.

He argues the principles that emerge from that definition are that discrimination need not be intentional - it may be the

unintended result of other actions. In order for discrimination to be present there must be a distinction drawn between

individuals or groups on the basis of the personal characteristics of the individual or group in question. Distinctions

based on attributed group characteristics (stereotypes) will nearly always be discriminatory. Distinctions based on the

actual merits and capacities of individuals will almost never be discriminatory. Consistent with this definition ofdiscrimination, the Supreme Court has recognized two main classes of discrimination: direct and adverse effect

discrimination, see O'Malley, supra, at page 332.

128 Counsel for the employer says the aerobic fitness standard and the physical fitness test at issue does not

discriminate directly against women. The same aerobic standard is expected of everyone without exception. Women are

not excluded from taking the test used to measure attainment of that standard. Nor are they subjected to tests or other

requirements not imposed upon men. Fully 35% of women taking the test meet the requisite standard and the question at

issue in this case is whether the particular standard chosen and the universal application of the physical fitness test used

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(f) Human rights legislation is not to be employed to eliminate the ability of employers to

impose and apply reasonably necessary workplace rules and policies.

(g) Where reasonably possible, the reasonable needs of employees arising from

characteristics protected by the legislation are to be accommodated, provided that it does

not cause the employer undue hardship to do so.

(h) The various tests and analytical structures created by the Court are but expressions of

these general principles - in all cases the real questions, which care must be taken not to

lose sight of, are: does the employer's practice or rule have a discriminatory effect on

persons on the basis of protected characteristics? If it does, is there any reasonable

alternative to that practice, either generally, or in the circumstances of the individual

affected employee?

138 Applying those principles to the case at hand, counsel argues there is no discrimination. The physical fitness test

is applied to everyone, without exception, allowing for individualized assessments to be made in preference to the

blanket application of a simplistic and stereotypical assumption about the ability of women as a class, or anyone else for

that matter, to perform the difficult and dangerous job of fighting forest wildfires.

139 Mr. Gall concedes that as a result of physiological differences between men and women, on average, men have ahigher aerobic capacity than women. However, a significant percentage of women who do take the test pass it and with

proper training, most healthy women in the 20 to 30 age group can meet the required aerobic standard of 50 VO[2] max.

That was not the case, however, for Ms. Meiorin despite the many opportunities afforded to her to take the test and to

demonstrate her fitness level.

140 Based on the application of these facts to the principles developed in the human rights jurisprudence by our

Supreme Court, he suggests one is led necessarily to the conclusion that the grievor has not, in any sense, suffered

discrimination. She, along with all other prospective forest firefighters, have been subjected to a test that was designed

to, and in fact does, assess individuals according to their individual abilities. He urges that where an employer actually

engages in such individualized assessments, as was done in this case, it cannot be said to be acting in a discriminatory

manner. Having done so, the employer has met the pronouncement of Sopinka J. in Saskatoon Fire Fighters that if an

employer engages in individualized testing that determines each employee is actually fit to perform the work, then there

is no discrimination. In the instant case, every applicant is tested against the same standard and the standard and the test

are reasonable. Thus, there can be no discrimination, direct or indirect. If there were discrimination simply by virtue of

the fact that on average women have less aerobic capacity than men, then there would be discrimination on the basis of

age as well, because, on average, older people have less aerobic capacity than younger people. Clearly, he urges, that

would be taking the concept of discrimination too far. The physical fitness standards and the tests used to measure the

standards in individual cases being reasona

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