part 4 - discrimination analysis (claim and justification) Flashcards
Two parts
- Prima facie case of discrimination
2. Justification of discrimination
burden of proving discriminatory practice on who
claimant
what does claimant need to show
- Denied or treated different wrt a good, service, accommodation or employment
- On one of the 11 prohibited grounds of discrimination (s.3)
onus of justifying a prima facie case of discriminatory
onus switched to respondent to justify the discriminatory practice
what are justifications for discrimination
- based on a bona fide occupational requirement (“BFOR”)
- there is bona fide justification (“BFOJ”) for that denial or differentiation
for any employment practice to be a bona fide occupational requirement, and for any other practice to have a bona fide justification, the respondent must establish that
“accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.”
prima facie case and then
whether the claimant has established a discriminatory practice
and then ask if the respondent has met that there is a bona fide practice (could not otherwise accommodate short of undue hardship
Problem with direct and indirect discrimination
depending on how you originally characterize the nature of the discrimination leads to different remedies
direct discrimination
Treat adversely or deny expressly on a ground of discrimination. The discriminatory practice is on the face
indirect/ adverse discrimination
Practice is neutral on its face, but in effect adversely treats on the basis of a ground
direct discrimination standard of justification and results
only justify direct discrimination if the statute allows them to justify it as bona fide (subjective + objective)
- If no such clause exists, or cannot meet this burden, then this remedy is that they MUST change the practice
indirect discrimination standard of justification and results
- Respondent never required to justify an indirect discrimination as bona fide
- Instead, they must show you that there is some rational connection between practice and nature of discrimination - don’t need to show that it’s necessary but that it’s not irrational
- They don’t need to change the practice, but accommodate the individual
direct discrimination case examples
Etobicoke and Stratford
indirect/ adverse discrimination examples
O’Malley and Renaud
Etobicoke and Stratford facts
Provision of collective agreement that when you reach certain age, terminated
Etobicoke and Stratford prima facie case
direct on the face of the practice
- You lose your job because of your age
How do we judge if its bona fide?
Subjective element and an objective
Subjective element of bona fide
employer must show that they did this in good faith, no ulterior motive
objective element of bona fide
employer must show and demonstrate that it is indeed necessary for the job
Etobicoke and Stratford subjective
DF argues that since it was argued in good faith of the parties, it must be bona fide. Employee and employer both agreed, must have been good faith and necessary
- Court says that this can’t be the case, because otherwise this would allow parties to contract out of their human rights obligations
Etobicoke and Stratford objective
- To justify early retirement in interest of safety, employer must demonstrate of relationship of sufficient risk
- Employer does not meet this burden, court says evidence mostly impressionistic, “young man’s game”
O’Malley and Renaud facts
employment scheduling
what is the court uncomfortable with indirect discrimination justifications
Once you engage, no justification available. Court is uncomfortable with automatic remedies, maybe this is ok with direct D, but employers who engage in general practice that results in adverse effects, leaves innocent discriminators defenceless
what is the practice assumed to be in indirect d
practice is assumed to be bona fide
- presumed from lack of intention
what does the q become in indirect
Could you accommodate short of undue hardship (evidentiary burden)
in indirect, what is the respondent not asked
respondent not asked if its bona fide
what things must respondent do in indirect
- Show that discriminatory practice is rationally connected, not arbitrary, most often this is implied from its neutrality
- Can’t accommodate short of undue hardship
Meiorin
CREATES UNIFIED FRAMEWORK
Meiorin facts
- M was a firefighter
- Employer implemented a fitness test after 3 years of employment
- Fired
- She claimed that the test created adverse effect discrimination because it was more difficult for women to pass than it was for men
why is Meiorin indirect
- This running test is indirect because it’s for everyone, on its face it’s not discriminatory
- But because of difference bw men and women, in effect disproportionally effects women
COURT CRITIQUE OF BIFURCATED FRAMEWORK in meiorin
- Artificial distinction between direct and indirect
- Remedies
- Assumption that the minority is affected in the cases of neutral practices (not a numbers game)
Artificial distinction between direct and indirect (meiorin)
- Not so easily categorized (you could move between them by function of design, so why should we hold it as distinct categories when it’s totally manipulative)
- The modern employer rarely does it directly, when they could do it indirectly (becoming manipulative discriminators, doing it undercover)
There is in effect little difference in the application of the two justification standards (meiorin)
- To ask about reasonable accommodation essentially asks the question: could you do this differently
- If you could accommodate for one, why couldn’t you accommodate for many, and change the practice
meiorin ratio
Bifurcated is a false distinction. From perspective of claimant doesn’t matter if its direct or indirect, so you shouldn’t be entitled to a different remedy
- Gives unified framework
unified framework 3 questions (meiorin)
- employer adopted standard for a purpose rationally connected to job performance
- adopted in honesty and good faith - subjective
- standard/practice is reasonably necessary to the accomplishment of that legitimate work-related purpose - objective
employer adopted standard for a purpose rationally connected to job performance (meiorin)
Purpose of practice has to be connected to the job
- low standard, just needs to not be arbitrary
adopted in honesty and good faith - subjective (meiorin)
Adopt this practice in good faith belief that it was necessary to achieve that purpose
- Low standard, looking for no bad intention
standard/practice is reasonably necessary to the accomplishment of that legitimate work-related purpose - objective (meiorin)
- Must SHOW with evidence it is impossible to accommodate - Can employer demonstrate that this practice is reasonably necessary
- Can only do this if they show they cannot adopt a more inclusive practice short of undue hardship
Evidentiary burden in step 3 of unified test
process and substance
process (unified)
show me the process that you adopted it. Validate your methods for having used this test. Show me that you consulted someone, well- reasoned and explored choice
substance (unified)
court looks at alternative practices and asks why you didn’t apply these more inclusive practices. Have to show undue hardship from adopting a more inclusive practice. Have to show why your test, in substance could not have been different
Grismer facts
- G was truck driver, drove for years and had a stroke
- BC has blanket provision preventing anyone without peripheral vision from having drivers license
- G has HH which reduces the scope of peripheral vision
- He was refused individual assessment and was not allowed to receive a license and was therefore unable to complete his job
Innovation of unified
that duty to accommodate to undue hardship is incorporated into the bona fide standard
- Means no longer maintain d practice and accommodate principles
- Equality built into the practice, you must change your practice, practice must be more accommodation - in all cases change practice
unstable framework
- set of divided courts, grappling with what the nature of the public law project was, ask “what is discrimination”
- show some hesitation with human rights project
McGill University Health Centre facts
- Claimant worked for McGill Health Center and took a leave of absence after she had a nervous breakdown
- When rehab period in collective agreement was up she was going to go back to work but was in a car accident
- Hospital terminated employment after prolonged absence
- Clause in agreement said unless work related disease/injury would be terminated after 36 months
- Employer had extended this period for her but ultimately ended employment
abella in mcgill
- For a practice to be discriminatory, adverse effect has to be based on stereotypical or arbitrary assumptions about a ground
- Not just on a basis of a ground but arbitrary assumptions about the ground
what does abella in mcgill want to do
Wants fourth requirement: stereotype or arbitrariness
- Needs something more than adverse effect on the basis of ground, needs arbitrary or stereotypical treatment on ground
critique of abella in mcgill
- not all discrimination comes from stereotypes
- Talking about reasonableness and arbitrariness of practice are questions of justification, should not be on the claimant to prove it was on the basis of stereotype (this onus is on the respondent)
Bombardier facts
- Canadian pilot (Mr. Latif) born in Pakistan trying to get training at US post
- Needed a clearance check to fly in US
- Didn’t pass test and as a result also couldn’t training
- Also was refused training at the Montreal center because of the decision of the US
- Argues that US authority decision to deny training was on the basis of racial profiling, and by relying on that decision, the Canadian facility also discriminated on the basis of origin
Bombardier issue
What is “prima facie” discrimination and what degree of proof is required in order to establish it?
Bombardier reasoning
- Court holds that evidence must be tangibly related to the specific decision or conduct. Have to show and PROVE
- Bombardier could not show that IN THIS CASE, one of the grounds was the basis for refusal - evidence needs to be to your specific case, direct evidence
Bombardier ratio
Ground has to be A factor in the adverse treatment, need not rise to level of cause
Stewart facts
- Stewart worked in a mine
- Employees expected to disclose any dependence/addiction issues before any drug related incident occurred, would be offered treatment
- If they failed to disclose and were involved in an incident and tested positive for drugs, terminated
- Stewart used cocaine on his days off, did not tell employer, was involved in an accident tested positive for drugs, terminated
stewart majority reasoning
Majority said no prima facie case, must show that the ground was a factor in adverse treatment, and this didn’t happen here
- Terminated based on breach of policy - which is not prima facie
- Crt said drug dependence was not A factor in his termination
stewart dissent
How can you find no connection bw his drug dependence and his positive testing for drug use, which was clearly basis on policy was applied and he was terminated. Says connection is obvs
Systemic Discrimination case
Moore
Proving SD
Radek, Johnson, Pieters
Remedying SD
Action Travail, McKinnon
Moore facts
- M had severe learning disability and needed intense remedial instruction, but was not available in the public-school system (diagnostic center closed, district citing budgetary crisis, brought on by provincial budget cuts)
- He had to go to private school and parents had to pay for it
why are effects of SD hard to see
adverse effect is difficult to see because we rationalize it away
- the characteristic comes to define the very nature of the job or service itself - become normative, we don’t see their exclusionary effects
Moore reasoning
- Abella says systemic d only becomes visible in its effects. That its its defining feature. Can rarely be seen in individual claims of d, but only visible in cumulative effect, in the pattern that practice produces over and over again
what does abella say about statistics in Moore
- Statistics can lead you, they’re a good start for proving that ground was a basis for adverse effect, but they’re not conclusive
- So what can you rely on? How do you show that ground was a factor? Drawing of an inference
Radek v Henderson development facts
- R was a disabled and Aboriginal woman who frequented a shopping mall owned by H
- She was questioned and followed in the mall and they asked her leave and they wouldn’t tell her why
- It happened all the time
Radek v Henderson development reasoning
- Didn’t prove it by statistics
- Tribunal validated her claim by drawing inference from documentary evidence, and logs of security incident reports
- Security policy for these guards rely on category of “suspicious persons”
Johnson facts
Johnson (black driver) testified that had had been stopped by police 28 times without a valid reason for 6 year
Johnson reasoning
Strains the imagination” that there is nothing systematic happening - race was having some kind of factor
- An inference could be drawn
Peel Law Association v. Pieters facts
- P and N lawyer for a case and in the lawyer lounge in the library
- P and N are black
- A librarian came up and asked them for identification and didn’t ask anyone else in lounge
Peel Law Association v. Pieters reasoning
- Ample direct evidence in this case to support inference that race was factor in librarians questioning
- Challenged only those men, and no one else
- Unable to offer credible explanation for why she had selected them
- Social science evidence is the backdrop
Peel Law Association v. Pieters ratio
- Social science can be used to give context to a case but not to decide it
- Circumstantial evidence can be used for systemic discrimination bc it cannot be proven otherwise
Pieters and bombardier set limits on inferences drawn from circumstantial evidence how
circumstantial evidence must be related to case at hand
how do you remedy SD
- Because of way SR operates, can’t target practice itself - too many of them
- Instead you target the effect - design remedies to undo the effect
best tool to remedy SD?
creating opportunities for people to access jobs, education services
Action Travail des Femmes orders
- Too many instances of sex d in CN to try to go through and fix them
- Tribunal, in order the remedies, asked them to cease d practices (aptitude test or physical tests)
- Also ordered CN to shift workplace culture and prevent future d
- To do this, order: adopt practices that would lead to critical mass of women in your workforce
- Bring in women, that’s your task
Action Travail des Femmes results
report by CN was sporadic, quota systems = reorganized workplace to have 13% in each unit so you can claim you have 13% in each unit, hired women but any new opportunity, changed and promoted within so they could hire within
- 0.1 increase overall lol
Problem of systemic remedy is not if you have authority to order them…
Have the legal authority, but don’t have capacity to make meaningful orders, systems you are trying to change are complex systems
- And people who are masters of this system are the people you are ordering; they know how to get around the orders
McKinnon and Ontario Human Rights Commission v. Ontario facts
- Racial discrim at work at a penitentiary
- Remedial orders at both individual and systemic level
- M kept returning for 13 years to tribunal bc the orders weren’t being implemented and people just became more careful about how they discriminated
McKinnon and Ontario Human Rights Commission v. Ontario ratio
Ultimate failure of HR law to bring about change
- Case shows broad reach of remedial authority of independent administrative agencies, can continue to show jurisdiction over and over, but nothing changes