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8 Hum. Rts. Dig. 1 (2007)

handle is hein.journals/hurtsdg8 and id is 1 raw text is: VOLUME 8 NUMBER 1 Human Rights Digmest January 2007 Decisions Noted Restrictions on Male Guards U pheld . . . . . .. . . . . .. . . . . .. . .1 Delisting Sex Reassignment Surgery Not Discriminatory ............ 4 Man Can be Denied Membership in Women-Only Gym ............ 5 Retaliation Regarding Sexual Harassm ent .................. 6 Involuntary Detention of Mental Patient Not Discriminatory....... 6 Fines for Internet Hate Messages . . . . 7 Complaint Against Insurance Corporation W ill Proceed........ 7 Complaint Adequately Considered . . . 8 Denial of Transfer is Discriminatory. . . 8 Tribunal Reopens Hearing on C o sts . . . . . . . . . . . . . . . . . . . . . . .9 Court Confirms Complaint Will Proceed ................ . . . . .9 No Accommodation Possible ...... 10 Discrimination Claim Was Speculative ............. .... 10 Inside Page ...................2 Briefly Noted................11 Ordering ....................12 SEX DISCRIMINATION - correctional officer position denied -employee barred from certain jobs - work assignment for correctional officer - PUBLIC DECENCY - gender preference for certain job func- tions in correctional facility - EXEMP- TIONS -gender - BONA FIDE OCCU- PATIONAL QUALIFICATION - gender for corrections employee REASONABLE ACCOMMODATION - duty to accommodate short of undue hard- ship - Meiorin test for reasonable accom- modation - RETALIATION - discrimina- tory treatment after filing human rights complaint HUMAN RIGHTS - nature and purpose of human rights legislation - principles used to interpret the Charter applied to hu- man rights legislation - EQUALITY - equal treatment- equality of opportunity - relationship between equality under human rights legislation and equality un- der the Charter EVIDENCE - expert evidence - govern- ment reports - DISCRIMINATION - Law test (definition of human dignity) - Meiorin test - BURDEN OF PROOF - elements of a prima facie case The B.C. Human Rights Tribunal ruled that Earl Preiss was not discriminated against by the Ministry of the Attorney General when he was excluded from certain employment opportunities working with female offend- ers in the Province's correctional facilities. Earl Preiss is a correctional officer work- ing at the Fraser River Correctional Centre (FRCC). He is represented in his employ- ment by the B.C. Government and Service Employees' Union (BCGEU). Mr. Preiss began his employment with the Province as an auxiliary Security Officer in FRCC in 1997, and was called in to work on an as needed basis in order of seniority. In 1998, a call was put out to female auxiliaries be- cause the Burnaby Correction Centre for Women (BCCW) was short-staffed. BCCW offered female auxiliaries in other jails the opportunity to laterally transfer with their seniority hours, and then to transfer back to their original institution with their seniority a year later. This oppor- tunity was not open to male auxiliaries be- cause the work at BCCW required officers to work on the living units with female of- fenders. Another female-only opportunity at the BCCW was offered in March 2002. Earl Preiss complained that the preference for female staff was discrimination on the basis of sex. The Province has had a cross-gender guarding policy for many years, which places some restrictions on both male and female correctional officers in their work with opposite sex inmates. Male guards form about 70 percent of the correctional staff for the Province, and more than 90 percent of inmates are men. Male correctional officers are prohibited from performing certain functions with fe- male offenders that female correctional of- ficers are not prohibited from performing with either male or female offenders. In particular, male correctional officers are prohibited from working as front-line workers in women's living units and from performing single escorts of women out- side correctional institutions. As a male cor- rectional officer Mr. Preiss has been subject to these restrictions, and because of them, he was not able to take advantage of the opportunities at BCCW that were offered in 1998 and 2002. Before analyzing these facts, the Tri- bunal considered what test should apply. There has been considerable debate about whether, in human rights cases, the Su- continued on page 3

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