Towards a Judicial Analysis Focused on the Effects of the Adverse Treatment: What Implications for Anti-Discrimination Law?

The courts have originally approached discrimination through its purest and cleanest manifestation, as an intentional act, intended to adversely treat a person or a group, resentfully considered because of the assignment of a protected characteristic. While the perception of discrimination by judges has considerably evolved in a few decades, new forms of discrimination are frequently analyzed through an old prism: judges often find it difficult to unshackle their analysis from intention and they still tend to look for the “adversely” aspect in the treatment itself rather than in its effects. Instead, it would be possible to concentrate the analysis on the treatment effects, as Canadian judges are used to. This paper will try to promote this judicial approach and emphasize its conceptual repercussions, considering that it contributes to weaken the relevance of the distinction between direct and indirect discrimination as well as it facilitates the sanction of systemic discrimination.