Human Rights at Work: Physical Standards for Employment and Human Rights Law

This article focuses on the human rights dimensions of creating and implementing physical standards for employment for prospective and incumbent employees. The article argues that physical standards for employment engage two fundamental legal concepts of employment law: freedom of contract and workplace human rights. While the former promotes an employerâ s right to set workplace standards and make decisions of whom to hire and terminate, the latter prevents employers from discriminating against individuals contrary to human rights legislation. With reference to applicable human rights legislative regimes and their judicial interpretation in Canada, the United States, the United Kingdom, and Australia this article demonstrates the judicial preference for criterion validation in testing mechanisms in the finding of bona fide occupational requirements. With particular attention to the Supreme Court of Canada decision in Meiorin, this article argues that an effective balance between workplace safety and human rights concerns can be found, not in applying different standards to different groups of individuals, but in an approach that holds employers to demonstrating a sufficient connection between a uniform physical standard of employment and the actual minimum requirements to perform the job safety and efficiently. Combined with an employerâ s duty to accommodate, such an approach to lawful physical standards for employment conceives of worker and public safety and workplace diversity as emanating from a shared concern for human rights.The accepted manuscript in pdf format is listed with the files at the bottom of this page. The presentation of the authors' names and (or) special characters in the title of the manuscript may differ slightly between what is listed on this page and what is listed in the pdf file of the accepted manuscript; that in the pdf file of the accepted manuscript is what was submitted by the author