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Constructive discrimination

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Sometimes a rule or practice unintentionally singles out a group of people and results in unequal treatment. This type of unintentional discrimination is called “constructive” or “adverse effect” discrimination.

For example, an employer has a rule that male employees must be clean-shaven. Using this rule, the employer refuses to hire a Sikh man who, according to his religion, is not allowed to shave. The rule is not “intended” to exclude Sikh men from a job, but it has this effect. Unless an employer can show that a change or exception to the rule would be too costly or create a health and safety risk, the employer should agree to change the rule.

The Supreme Court of Canada has set out a framework for examining whether the person responsible for accommodation has met the duty to accommodate.[30] Where it is established that a standard, factor, requirement or rule results in discrimination, the person responsible for accommodation must show that the standard, factor, requirement or rule:

  1. was adopted for a purpose that is rationally connected to the function being performed
  2. was adopted in good faith
  3. is reasonably necessary to accomplish its goal or purpose, in the sense that it is impossible to accommodate the claimant without undue hardship.

As a result of this test, the rule or standard itself must be inclusive and must accommodate individual differences up to the point of undue hardship. This approach is preferable to keeping discriminatory standards that need ongoing  accommodation for people who cannot meet them.

[30] See British Columbia (Public Service Employee Relations Commission) v. BCGSEU (1999) 3 S.C.R. 3 (CanLII) [“Meiorin”]. Also, see Hydro-Québec v. Syndicat des employé-e-s de techniques preofessionnelles et de bureau d’Hydro-Québec, section locale 2000, (2008) SCC 43 (CanLII) for the Supreme Court of Canada’s recent comments on what the third part of this test means, in a practical sense, in the context of a disability accommodation in the workplace.


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