What is discrimination?

What is ‘discrimination’?

“Discrimination is an action, policy, practice, or decision that has a negative effect on an individual or group and is related to certain personal characteristics such as race, age, disability, gender, religious beliefs, family status, or sexual orientation. The behaviour may or may not be intentional... Harassment, racism, and hate can be forms of discrimination” Alberta Human Rights Commission

What is direct discrimination?

When an individual receives different and harmful treatment by virtue of their membership of a particular social group, e.g. ‘women cannot work here’

When did the Supreme Court of Canada expand definitions of ‘discrimination’?

In the 1980s the Supreme Court of Canada expanded definitions of ‘discrimination’

What is adverse effect discrimination?

“Adverse effect discrimination, on the other hand, acknowledges that laws, policies, or practices that appear neutral on their face may affect individuals and groups differently depending on their life circumstances and characteristics” (Sheppard, 2010:19)

What are other terms for adverse effect discrimination?

Referred to as: indirect discrimination; adverse effect discrimination; disparate impact discrimination.

What case addressed indirect discrimination in 1985?

Ontario Human Rights Commission v. Simpsons-Sears Ltd (1985)

What is direct discrimination according to Justice William McIntyre?

‘Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, “No Catholics or no women or no blacks employed here”...

What is adverse effect discrimination according to Justice William McIntyre?

the concept of adverse effect discrimination... arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force’

Who provided the distinction between direct discrimination and adverse effect discrimination in Ontario Human Rights Commission v. Simpsons-Sears Ltd (1985)?

Justice William McIntyre

What case addressed indirect discrimination in 1999?

British Columbia (Public Service Employee Relations Commission) v. BCGSEU (1999)

What case addressed indirect discrimination in 2020?

Fraser v Canada (Attorney General) (2020) SCC 28

What are some challenges with indirect/adverse effect discrimination?

• What degree of statistical disparity is required for a conclusion of adverse effects discrimination?

• Perhaps the distinction between direct and indirect discrimination is arbitrary?

• Need for a comparator group?

What is the question of intent in discrimination?

• The Supreme Court of Canada stated in Simpson-Sears in 2020: “Whether the legislature intended to create a disparate impact is irrelevant”

• The requirement of proof of intent would put “an insuperable barrier in the way of a complainant seeking a remedy”.

What did the Supreme Court of Canada state about legislative intent and disparate impact?

“Whether the legislature intended to create a disparate impact is irrelevant”

Why would requiring proof of intent be problematic?

The requirement of proof of intent would put “an insuperable barrier in the way of a complainant seeking a remedy”.