In Canada, this is usually referred to as "adverse effect discrimination." This was the issue in Fraser v. Canada (Attorney General), 2020 SCC 28, but it presents a variety of examples from Canada and the United States (where it's called "disparate impact discrimination") for background.
Instead of asking whether a law explicitly targets a protected group for differential treatment, a court must explore whether it does so indirectly through its impact on members of that group (see Eldridge, at paras. 60‑62; Vriend, at para. 82). A law, for example, may include seemingly neutral rules, restrictions or criteria that operate in practice as “built‑in headwinds” for members of protected groups. The testing requirement in Griggs is the paradigmatic example; other examples include the aerobic fitness requirement in Meiorin, and the policy requiring employees to work on Saturdays in Simpsons‑Sears (see also Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489).
From these examples:
- Eldridge was about failing to provide sign-language interpreters as an insured benefit under a provincial medical services plan. This restriction applied equally to the hearing and deaf populations. But this had an adverse impact on the deaf population. Because this was a government service, it was subject to scrutiny under the Charter of Rights and Freedoms.
- Griggs was a class action against a large employer who required applicants for higher-paying jobs to pass an aptitude test and have completed high school. The claim was that this discriminated against African-American employees in violation of Title VII of the 1964 Civil Right Act. The Supreme Court of the United States held that the standardized testing requirement rendered a "disproportionate number" of African-Americans ineligible from promotion, transfer, or employment.
Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox. On the contrary, Congress has now required that the posture and condition of the job seeker be taken into account. It has -- to resort again to the fable -- provided that the vessel in which the milk is proffered be one all seekers can use.
...
On the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used.
- In Simpsons-Sears, an employer required full time workers to be available for Saturday shifts. A tenet of the faith of the complainant was that the Sabbath must be strictly kept, so she was not available to work on Saturdays. She filed a complaint under the Ontario Human Rights Code. The Supreme Court found in the complainant's favour.
it was not disputed, that the policy of Saturday opening followed by the respondent was adopted for sound business reasons and not as the result of any intent to discriminate against the complainant, nor out of any malice towards the complainant or members of her faith
...
An employment rule honestly made for sound economic or business reasons, equally applicable to all to whom it is intended to apply, may yet be discriminatory if it affects a person or group of persons differently from others to whom it may apply.
A very general framework:
- Identify the source of any protection (constitutional, statute, etc.)
- Determine whether it applies in a particular setting (employment, tenancy, public services, etc.)
- Establish that a distinction results in members of a protected group being treated adversely
- Look to whether the regime allows for exceptions for bona fide occupational/business needs, or allowance for reasonable accomodations etc.
