Criminal Background Checks and Bona Fide Occupational Requirements (BFORs)

By 6 December 2016June 22nd, 2022No Comments

A Bona Fide Occupational Requirement (BFOR) is a legal term that refers to the essential requirements a candidate needs to perform a job. If an employer establishes a particular BFOR that cannot be modified or adopted to accommodate a person, they may be allowed to not accommodate a worker in that job, legally speaking, if it’s too taxing on the organization (if it’s an undue hardship). BFORs don’t act as preferences but rather as duties that are essential for carrying out a position or working for particular business. For instance, having a clear criminal record could be considered a BFOR jobs working with sensitive information or populations. Many employers have pre-employment screenings that include criminal background checks that they are legally allowed to conduct. This requirement does not have to be in legislation – it is a requirement in all jurisdictions (federal and provincial/territorial) because of the Meiorin Supreme Court decision.

Prior to November 2009, employers could, as part of their pre-employment screening process, conduct either basic criminal records check or a vulnerable sector check by submitting a request to an authorized agency, like a local police force or a third-party screening provider. These agencies would then conduct a search of the Canadian Police Information Centre (CPIC), the national database of the RCMP.  The human rights implications of this have been reconsidered since then. Employers can still check for criminal records, but the way in which they do so has changed.

Human Rights Implications

In some provinces like British Columbia, human rights legislation prohibits employers from refusing to employ a candidate who had been convicted of a criminal or summary conviction offence that was unrelated to the intended job, unless the employer can establish that the prior conviction is related to the intended position. Otherwise, under the Human Rights Code, an employer cannot refuse to hire a candidate who has been criminally convicted, because it’s considered discriminatory.
The Meiorin decision sets out three steps that help determine whether a discriminatory standard is a BFOR:
1.    Did the employer adopt the standard for a purpose rationally connected to the performance of the job?
2.    Did the employer adopt the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose?
3.    Is the standard reasonably necessary to the accomplishment of that legitimate work-related purpose? (To show the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate without imposing undue hardship upon the employer.)

Getting a Pardon

A pardon / record suspension opens up more opportunities for an individual with a criminal past. Having a clear criminal record is a BFOR in many positions and obtaining a pardon removes the obstacle posted by their criminal history when it comes to these types of job requirements. It more often than not yields a positive result because it allows a person to focus on rehabilitation and reintegration into the workforce without any risk for discrimination, or any risk of not getting a position because of a pre-established BFOR.

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