Understanding Systemic Discrimination: A Practical Framework For Workplace Investigations

The observations that follow draw on Canadian case law and on my experience conducting discrimination investigations and systemic assessments in employment and regulated professions.¹ This work has required looking beyond individual incidents to see how organizational processes operate, mirroring the approach adopted by tribunals and underscoring the importance of understanding systemic discrimination before turning to the investigative process itself.

With this in mind, this blog offers an overview of the legal and analytical frameworks of systemic discrimination.

What systemic discrimination is, and what it is not

A helpful starting point for understanding systemic discrimination, as compared to other forms of discrimination, is the definition articulated in the Gaz Métropolitain case. According to the Human Rights Tribunal of Québec ("Tribunal") and the Québec Court of Appeal, systemic discrimination refers to "the sum of the disproportionate exclusionary effects resulting from the combination of often unconscious attitudes marked by preconceived notions and stereotypes, and of policies and practices that are generally adopted without taking into consideration the characteristics of those members of the group who are the object of the prohibition of discrimination."²

This definition echoes the one proposed by the Supreme Court of Canada in CN v. Canada.³ However, the Tribunal's formulation is more helpful, as it clarifies that systemic discrimination does not arise from an isolated rule, decision, or practice. Rather, it emerges when several components of a system interact to produce adverse impacts for members of a protected group. The discriminatory effect must therefore be traced to the operation of the system itself, not to one isolated element.

Direct discrimination, by contrast, involves differential treatment based on a protected ground, whether the decision maker acts intentionally or is influenced by biases (for example, refusing to hire a qualified person because they are trans*).⁴ It also includes rules or requirements that rely on a protected ground (for example, imposing mandatory retirement at age 60).⁵ Indirect or adverse impact discrimination occurs when a rule or practice that is neutral on its face, disproportionately affects members of a protected group (for example, a minimum height requirement that excludes a disproportionate number of women and candidates of certain origins compared to men of European descent).⁶

In cases of direct or indirect discrimination, the analysis usually focuses on a single rule, practice, or decision, even where several individuals experience similar consequences. Systemic discrimination, however, concerns the interaction of multiple components that, together, create a broader pattern of exclusion or disadvantage.

For investigators, this distinction matters. The focus should not be on an individual decision maker, a single moment in time, or one isolated rule or practice, but on how the design, application, and combined effects of the process operate as a whole. Without this broader lens, investigators risk interpreting each step in isolation and missing the systemic issue.

What does analyzing systemic discrimination entail?

Once investigators understand what systemic discrimination is, the next step is to turn to the analytical framework used to assess whether there is a prima facie case (that is, whether the evidence establishes prejudicial differential treatment linked to a protected ground, without yet considering whether that treatment can be justified). Again, Gaz Métropolitain provides helpful guidance. The Tribunal applied a two-step lens: a micro analysis of each relevant component of the system, followed by a macro analysis of how these components operate together.

The micro analysis requires examining each step of the process to determine whether it creates an obstacle or produces an adverse impact. This may involve assessing whether certain requirements would raise human rights concerns on their own, for example because they expressly rely on a protected ground, disproportionately exclude members of a protected group, or lack a clear operational rationale. In Gaz Métropolitain, the Tribunal reviewed elements such as recruitment requirements, aptitude tests, and the way interviews were conducted to evaluate whether they created barriers for women seeking access to blue-collar positions.

The macro analysis then involves stepping back to assess the system as a whole. This assessment is essential to understanding how the system produces discriminatory outcomes. In Gaz Métropolitain, the Tribunal examined how the identified hurdles interacted and reinforced one another, and found that even when some steps were neutral (in that they were detrimental not only to women but to all candidates), their cumulative effect contributed to the disproportionate exclusion of women.

If this two-step analysis establishes a prima facie case, the final question is whether the system, viewed as a whole, is reasonably necessary despite its adverse effects; in other words, whether the discriminatory impact can be justified under the applicable human rights legislation or policy.

Using this dual lens moves the analysis from the narrower question of whether one step is problematic to the broader question of what pattern emerges when all steps are viewed together. In many cases, the discriminatory impact only becomes apparent when the process is examined holistically.⁷ This is why systemic discrimination requires its own analytical approach at the prima facie stage.

*******

Investigators cannot properly address allegations of systemic discrimination without understanding what it is, how it differs from other forms of discrimination, and the analytical framework that applies to it. This blog offered a brief, non-exhaustive introduction to these foundational elements and the conceptual grounding investigators need before turning to the investigative process itself.

In a next blog, I will explore practical considerations when investigating systemic discrimination allegations, including collecting evidence, choosing who to interview, and drafting the investigation report.

Version française

Footnotes

1. For a broader discussion of systemic barriers in access to regulated professions, see: Frédérick J. Doucet, La reconnaissance des qualifications des professionnels formés à l'étranger : l'égalité réelle mise en oeuvre au Québec?, Québec, Presses de l'Université Laval, to be published in 2026 (in French only).

2. Commission des droits de la personne et des droits de la jeunesse c. Gaz métropolitain inc., 2008 QCTDP 24, at para 36, conf. by 2011 QCCA 1201, at para 47.

3. CN v. Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114, 1139. The definition proposed in the CN case is itself grounded in the Abella Report on Equality in Employment. See: Rosalie S. Abella, Report of the Commission on Equality in Employment, Ottawa, Minister of Supply and Services Canada, 1984, at pp. 9-10.

4. See: Commission des droits de la personne et des droits de la jeunesse (E.B.) c. 9302-6573 Québec inc. (Bar Lucky 7), 2024 QCTDP 9. I have discussed this case in a previous blog: Frédérick J. Doucet, "Turned away for being trans: What the Bar Lucky 7 case tells us about workplace discrimination" (June 17, 2025), Rubin Thomlinson's Insights, online.

5. See: Ontario Human Rights Commission v. Etobicoke, [1982] 1 SCR 202.

6. See: Chapdelaine v. Air Canada, 1987 CanLII 102 (CHRT).

7. For example, see: Fraser v. Canada (Attorney General), 2020 SCC 28; Association of Ontario Midwives v. Ontario (Health and Long-Term Care), 2014 HRTO 1370, conf. by 2022 ONCA 458.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.