Direct vs Adverse Impact Discrimination

The difference between direct and adverse impact discrimination was defined in a 1985 Supreme Court of Canada case, written by McIntyre, J. ¹

The illustrated example of the distinction was shown by the following: “No Catholics or no women or no blacks employed here” is clearly conduct which is direct discrimination. This is a conduct which “on its face” violates a prohibited ground.

This is to be contrasted with the adverse impact discrimination, in which the employer’s rule is neutral “on its face”, one which applies to all employees, yet, nonetheless has a discriminatory effect on one employee or a group of similarly situated employees.

This is so due to “some special characteristic” of this sub-sector of the workplace. An example of such a rule was given in a later 1999 decision of the Supreme Court ² of an employer rule which required all employees to take a pregnancy test as an employment condition.

Historically, these two categories were treated as distinct forms of discrimination, with different analytical approaches and defences.

That distinction was fundamentally altered by the Supreme Court of Canada in British Columbia (Public Service Employee Relations Commission) v. BCGSEU.

The Supreme Court decided in this 1999 case ³ that it was no longer necessary to distinguish discriminatory conduct as direct or adverse impact. ⁴. Various reasons were used to support this conclusion which were as follows:

1. The distinction is often difficult to apply, appears artificial on occasion and may be manipulable;
2. It appears unfair to apply differing remedies which may depend on the classification of the questioned conduct;
3. It may allow for the acceptance of systemic discrimination; and
4. It is inconsistent with the purpose of human rights legislation.

All this being said, the distinction remains relevant to Ontario law as the Ontario statute sets out the defence of a bona fide occupational requirement in S. 11 of the Code. This defence remains available where the adverse conduct is indirect. The section states as follows:

Constructive discrimination

11 (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a)  the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b)  it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.  R.S.O. 1990, c. H.19, s. 11 (1).

This term of the Ontario Code allows a BFOR defence also available for a case of direct discrimination. The words of Entrop, more precisely, state that this defence should be allowed only in cases where the adverse treatment can be “neatly characterized” as direct discrimination, referring to the Meiorin decision.

The consequence of these words is that if there is doubt as to whether the violation is direct or indirect, it should be seen as indirect or adverse impact. This was the conclusion of the Ontario Court of Appeal in its 2023 decision. ⁵ Once found as indirect, then under the Ontario Code, the defence of BFOR will be allowed.

The consensus of the above is, hence, that the sole importance of this distinction of direct as opposed to adverse impact, is that the latter allows the BFOR defence under the Ontario code. If there is no issue of a BFOR defence, there is no difference between the two.

The test of showing a prima facie test remains the same, whether the alleged adverse conduct is direct or otherwise. [/efn_note] Imperial Oil OCA [/efn_note]

These decisions recognize that, while the statute retains the language of adverse impact discrimination, the analytical framework is governed by Meiorin. The defence of a bona fide occupational requirement is available, but it must be assessed through the Meiorin test.

The employer’s defence after a prima facie case

The practical importance of Meiorin lies in what follows once a prima facie case has been established.

At that point:

• discrimination is presumed
• the burden shifts to the employer
• the issue becomes whether the employer can justify the impugned rule or conduct

The employer must establish:

1. that the rule serves a purpose rationally connected to the job
2. that it was adopted in good faith
3. that it is reasonably necessary, in that accommodation is not possible without undue hardship

This third step is the critical one. It requires the employer to show not simply that the rule is useful or efficient, but that it cannot be modified to accommodate the employee or group without undue hardship.

What the employer must actually prove

In practical terms, the defence requires evidence of:

• the objective of the rule and why it matters
• consideration of alternative, less discriminatory approaches
• efforts to accommodate the affected employee
• the point at which further accommodation would create undue hardship

General assertions are not sufficient. The employer must demonstrate that the standard has been examined and cannot be made less exclusionary.

The shift from classification to justification

This is why the distinction between direct and adverse impact discrimination has largely lost independent significance.

The real issue in most cases is not how the discrimination is categorized, but whether the employer can justify it.

The modern framework asks two questions:

• has discrimination been established
• can the employer justify the rule under the Meiorin test

If the employer cannot meet that burden, liability follows.

Conclusion

The historical distinction between direct and adverse impact discrimination remains part of the statutory language in Ontario, but it no longer drives the analysis.

The focus is now on justification.

Once a prima facie case is proven, the case turns on the strength of the employer’s defence.

 

 

 

 

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1. OHRC v Simpsons-Sears, referred to as “O’Malley”)
2. Meiorin and also Entrop, OCA
3. Meiorin
4. Adverse impact is also referred to as “indirect” discrimination
5. Imperial Oil