Direct Discrimination and Indirect Discrimination: A Distinction with a Difference

Abstract

Since Meiorin, it can be tempting to think that in Canadian law, the distinction between direct discrimination and indirect discrimination is now a distinction without a difference. The same analytical framework applies to both kinds of discrimination, and both can yield liability, so one might think that focusing on the distinction pointlessly distracts from the substantive concerns of discrimination law. However, I take a different view. In the context of Canadian human rights codes, the distinction remains significant. Despite attempts to abandon the distinction, the distinction seems to hold intuitive appeal and carries practical benefits. I submit that it is a distinction with a difference: it encourages adjudicators to consider more carefully discrimination without discriminatory intent, thus identifying cases of genuine discrimination they might otherwise miss.