Understanding Adverse Effect Discrimination

Indirect discrimination, also called adverse effect discrimination, is less obvious than direct discrimination but is equally a breach of human rights legislation.

In George v. Accertaclaim, a recent decision from the Human Rights Tribunal, Natalie MacDonald successfully defended against a claim that the company had discriminated against its employee by failing to consider her when making an internal hiring decision. The Tribunal found that the position would have been a demotion for the claimant, and that promoting, or even grooming, one individual within the company did not create an adverse effect on the claimant.

Adverse effect discrimination is a situation in which a policy that seems on its face to treat everyone equally actually has an adverse impact on a protected group. Some examples include:

• A work schedule that requires all employees to work Friday evenings might have an adverse effect on employees who have religious observations on Friday evenings;A zero tolerance policy for drug and alcohol use at work might have an adverse effect on employees with addictions;
• A policy of rotating evening shifts between all employees might have an adverse effect on parents who are unable to find childcare at night; and
• A policy requiring all employees to pass a physical strength test might discriminate against women.

Adverse effect discrimination is almost never intentional, and often arises out of an employer’s attempt to treat all employees fairly and equally. As such, it is difficult for employers to predict which policies may give rise to discrimination complaints.

The groups protected by human rights legislation are constantly evolving as societal norms change. In recent years, “family status” has been interpreted to include child and elder care obligations, and “disability” can include the need to use medical marijuana. As such, employers must be cautious when implementing rules and responding to requests for accommodation. The key is to consider how any workplace rule will impact different groups and to take all requests for accommodation seriously. Such requests should never be dismissed out of hand. Employers have a duty to accommodate employees to the point of undue hardship, which can include changing its policies, or allowing an individual modification of a policy for particular employees.

 

by Cody Yorke