National Post

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Saturday, September 11, 1999

Lowering the bar
National Post

If at first you don't succeed, identify yourself as a member of an under-represented "sample group." That was the message of the Supreme Court of Canada, which on Thursday unanimously ruled that Tawney Meiorin, who lost her job as a B.C. forest firefighter in 1996 for repeatedly failing the requisite running test, be reinstated.

To be a forest firefighter in B.C., until now, an applicant needed to weigh less than 200 lbs and to be able to complete a shuttle run, an upright rowing exercise, and a "pump carrying/hose dragging exercise" within designated times. Three times, Ms. Meiorin failed the shuttle run -- a 2.5 kilometre stretch to be finished in under 11 minutes.

One might quibble over whether 11 minutes is the right minimum time to assure forest firefighting competence. But it seems to be a test that many women can pass. "I don't think there's any question whether women can run 2.5 kilometres in 11 minutes ... A zillion women have already shown that," said Bruce Kidd, the former Olympic runner and dean of physical education at the University of Toronto, in February.

But suppose that women have a higher failure rate than men? Current law assumes that a test in which women or minorities systematically underperform amounts to prima facie discrimination. Now, the B.C. standards clearly discriminated against persons weighing over 200 lbs. and against people with poor hand-to-eye co-ordination. And they were meant to do so. But were they discriminatory against women?

Superficially it may appear so. Firefighting requires high physical fitness. Because the abilities of women and men each fall on a bell curve, and because the average physical strength of men is considerably higher, this means that any one physical standard will inevitably appear to discriminate against women.

Thus, in the 11-minute running test, 77% of the men passed, but only 35% of the women. But raising the benchmark to, say, 15 minutes will still appear discriminatory to women because the different bell curves predict that 90% of men will pass while just 60% of women will pass. In fact, women will disproportionately fail the test, not because of systemic discrimination, but because of their lesser average physical strength.

Was the test, then, flawed in its conception, as the court argued? The standards were originally set using an original test sample group of forest firefighters, of whom 33% were women (even though forest firefighters in the region are 94% men). The relatively high percentage of women in the test sample indicated the testers were well aware that physiological differences existed between men and women and that the average woman would do worse than the average man on these tests. So in order to make it possible for more women to meet minimum safety standards, they oversampled women. If the test design was flawed, it favoured women.

But the court disagreed, ruling the testmakers did not go far enough in making allowances for the lower average physical strength of women. It said that women applicants should be judged against the standards of the original women test subjects rather than against the average standard of the whole original group. But why? Should flat-footed applicants be judged only against the standard of flat-footed firefighters? Or left-handed people? Or the dim-witted? Such reasoning is plainly absurd and must bring the court into disrepute among sensible people.

Still, having established that women applicants could perform as well as women test-takers, the court ruled that any more severe test was discrimination. But that did not end the matter. Even if a test is shown to be discriminatory, it may still pass legal muster if it identifies qualities needed for the job -- in this case, qualities needed to rescue people from burning buildings.

Here the court substituted its own uninformed judgment of the physical qualities required in firefighting for the expert knowledge of the firefighters themselves. The court ruled that the test should examine whether women could perform the job safely and efficiently even if to a lower standard.

May we urge the judges to ponder on that for a moment. There is no absolute definition of safety and efficiency; they are relative concepts. What the court is proposing therefore is a lower standard of safety and efficiency in firefighting.

Now, think of the consequences. If we allow the recruitment of firefighters who run less fast, are unable to carry the same heavy burdens as their colleagues, and need more help from others to drag hoses or bodies, then they will take more time to put out fires and they will save fewer lives. There are no "ifs, buts or maybes" about this; it is a mathematical certainty as sure as 2+2=4.

So more people will die in burning buildings in order to ensure that more women can become firefighters. Some of those victims will be women who are likely to doubt this ruling has advanced their rights. Nor do we. The court's decision is a reductio ad absurdum of employment equity law, and Parliament should not let it stand.

Copyright Southam Inc.