Academic journal article Review of Constitutional Studies

Adverse Effect Discrimination: Proving the Prima Facie Case

Academic journal article Review of Constitutional Studies

Adverse Effect Discrimination: Proving the Prima Facie Case

Article excerpt


Adverse effect discrimination (1) is a wrong cloaked in shades of grey. Those who see the world in black and white can relate more easily to direct discrimination, which arises from standards that are discriminatory on their face. Adverse effect discrimination arises from standards that are neutral on their face, apparently applying to everyone equally, but which have an adverse effect on some groups of people. (2) Because it is indirect, adverse effect discrimination must be demonstrated through proof of differential treatment. Differences in treatment may appear as a continuum. At what point on the continuum does perceived differential treatment become discrimination?

If statistics show that 80 percent of men, but only 60 percent of women consistently pass an eligibility requirement for benefit entitlement, can that requirement be challenged as having a discriminatory effect on women? What if 75 percent of men and 70 percent of women are able to meet the requirement?

If part-time employees are ineligible for sick pay that full-time employees receive, and a great majority of the part-time employees are women, is the employer discriminating against women?

These are questions that relate to proof of adverse effect discrimination. The first question focuses on proving differential treatment: what degree of disparity must be evident to establish adverse impact? The second explores the connection between the differential treatment and a prohibited ground of discrimination: if a group of persons experiencing differential treatment is not defined by a characteristic implicating anti-discrimination law, but many of those persons share a protected characteristic, (3) does the differential treatment constitute discrimination? Canadian equality jurisprudence does not provide ready answers to these questions, but some basic principles common to several jurisdictions offer guidance.

When equality issues are litigated under section 15(1) of the Canadian Charter of Rights and Freedoms, attention is focused on "whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee." (4) This issue is the third of three in the analytical framework for equality analysis set out in Law v. Canada. (5) However, in cases of adverse effect discrimination, the first two issues within this framework present their own challenges. These are the issues of:

a) establishing differential treatment; and

b) trying differential treatment to an enumerated or analogous ground of discrimination. (6)

The two questions posed above are relevant to the first two inquiries of the Law framework. Whether a case is brought under the Charter or under provincial or federal human rights legislation, the claimant alleging adverse effect discrimination must establish that there is differential treatment implicating a characteristic protected under an instrument of human rights law. (7) In this respect, anti-discrimination law in Canada, the United States and the European Community is based on the same broad principles. While litigation in various jurisdictions necessarily differs in response to differences in the governing legislation, this article focuses on commonalities across jurisdictions.

As equality jurisprudence evolves, a coherent and sophisticated theory of adverse effect discrimination is needed to assist claimants, lawyers, and adjudicators with the complexities associated with challenging discrimination embedded in apparently neutral standards. (8) Such a theory has its foundation in the basic principles of anti-discrimination law.

This article will focus on the application of these fundamental principles to proof of adverse effect discrimination. This discussion is framed within an employment law context, with a particular focus on the example of adverse effect discrimination claims by part-time employees. …

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