Direct versus adverse indirect discrimination
Direct discrimination refers to actions taken which on its face shows discriminatory conduct. For example, a company rule which states “Only white males may apply” would be clearly such an act of direct adverse conduct.
Indirect or “adverse impact” discrimination refers to a rule which appears to be neutral on a first reading as it proposes to apply to the entire work force, yet it treats certain persons within that group unfairly due to certain characteristics or traits of this group. For example, a company policy which states “no person shall be entitled to maternity leave” clearly impacts women who are or may be in the future pregnant, would be such an example.
The Supreme Court of Canada found no reason to continue this distinction in its 1999 decision, known as “Meiorin”. 1 The distinction between the two is often difficult which is one reason why the Supreme Court wished to move away from this analysis. 2
The B.C. Court of Appeal noted in its 2016 decision: 3
Meiorin (cite omitted) announced a unified approach to adjudicating discrimination claims under human rights legislation. The distinction between direct and indirect discrimination has been erased. Employers and others governed by human rights legislation are now required in all cases to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics. Such characteristics are frequently based on bias and historical prejudice and cannot form the basis of reasonably necessary standards. While the Meiorin test was developed in the employment context, it applies to all claims for discrimination under the B.C. Human Rights Code. [Underline emphasis added.]
Ontario law, however, requires the application of the distinction between these two concepts. This is so as the Human Rights Code contains a BFOR defence 4 which is available when the adverse conduct is indirect.
S. 11 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).
It is this defence of BFOR that gives rise to the duty to accommodate.
In the event of a finding of indirect discrimination, the policy or rule in question is not struck down, but rather the effect on the complainant must be considered. The employer must show accommodation.
It is this issue which was then addressed by the Supreme Court in O'Malley, having found that there was no requirement of intent, as had been previously decided by the Divisional Court and the Ontario Court of Appeal. It is in this context that the duty of accommodation arises:
Where there is adverse effect discrimination on account of creed the offending order or rule will not necessarily be struck down. It will survive in most cases because its discriminatory effect is limited to one person or to one group, and it is the effect upon them rather than upon the general work force which must be considered. In such case there is no question of justification raised because the rule, if rationally connected to the employment, needs no justification; what is required is some measure of accommodation. The employer must take reasonable steps towards that end which may or may not result in full accommodation.
That being said, the Court added that a perfect compromise may well not result in which instance, the complainant may need to choose:
Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part‑time work, must either sacrifice his religious principles or his employment.
In this instance, this question was an academic one as the employer had called no evidence to support the issue of accommodation. The Supreme Court allowed the appeal and ordered the lost income sum be paid.
The s. 17 defence is to applied when the adverse treatment is direct. 5
In the recent decision of the Ontario Court of Appeal dealing with the alleged violation of adverse treatment due to citizenship, the Divisional Court found that the adverse conduct was direct.
The same Court had held previously that the distinction between direct and indirect and any controversy as to which of the two should apply, must give way to the conclusion that the adverse treatment is indirect and hence then allow the BFOR defence to be asserted. That is, the tie goes to the runner, in this case, indirect discrimination. There should be a clear cut case made out for direct discrimination to avoid the BFOR defence. 6
When there is no issue raised as to a BFOR defence, there is no difference between the two.