Establishing Prima Facie Discrimination
The legal test for whether there is discrimination on a prohibited ground has two (2) steps:
- A prima facie case of discrimination must be made out. If so, the analysis move onto the second step;
- The conduct or practice must be justified under one of the exemptions available. If not discrimination will have been found to occur. Please see “How an Infringement Can Be Justified” for more information regarding this step.
At the first step of the two-step process, a complainant bears the responsibility of demonstrating negative or differential treatment based on a protected human rights ground and that this ground was a factor in the negative or differential treatment.
This step is what is known as establishing a prima facie case, which means at first blush or on its face. This step typically does not have a high threshold to meet and is required to be proven on a balance of probabilities, or more likely than not to have occurred.
Direct and Indirect (Adverse Effect) Discrimination
Direct discrimination occurs when an employer creates a rule that directly discriminates against individuals protected by a specific ground.
For example, terminating employees on the basis of age, such as with a mandatory retirement framework, constitutes prima facie discrimination.
Indirect or adverse effect discrimination occurs when an employer creates a rule that appears neutral which applies equally to all employees but has a discriminatory effect on a ground associated with an employee or group of employees
For example, a high aerobic standard as a requirement to become a firefighter appears immediately logical. However, the Supreme Court of Canada found that this rule adversely and disproportionately affected women, through sex, a ground protected by all Canadian human rights legislation.
The Elements Required to Make a Prima Facie Case
Canada’s top court, the Supreme Court of Canada, restated and clarified the test for prima facie discrimination in their decision: Moore v. British Columbia (Education) (2012).
To demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact.
This can be broken down more simply into three elements; the ground, the harm, and the contribution.
1) The ground can be identified by relying on the most relevant human rights legislation.
For example, the Federally enacted Canadian Human Rights Act identifies protected grounds of discrimination in s. 3(1) as; “race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted.”
Different provinces protect different grounds of discrimination, so this needs to be the first step of your analysis.
2) The harm may range from termination, to not being considered for a promotion, transfer to a less satisfying position, reduction of working hours, harassment, profiling, and even sexual harassment.
This component of the analysis will be highly contextual, and fact-specific.
3) Within the contribution step of the analysis, the court is focused on the discriminatory effect between the protected ground, and the harm suffered.
In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), the Supreme Court clarifies for us, “human rights jurisprudence focuses on the discriminatory effects of conduct rather than on the existence of an intention to discriminate.”
In fact, the threshold only requires that “the protected characteristic was a factor in the adverse impact.” It does not have to be the defining or dominant reason for the harm, but merely a factor, in order to link the ground and the harm together.
Then the Onus Shifts to the Respondent
Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.
In other words, upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory. This will be explored in more detail in “How Can an Infringement be Justified?”