Abstract:
Despite its status as a fundamental concept in human rights law, what constitutes
discrimination has tended to elude categorical definition in either New Zealand or
Canadian law. The prevailing approach toward discrimination accepts it as an
inherently comparative concept, and despite suggestions by some that discrimination
could be re-framed in a non-comparative manner, this does not appear appropriate
for every circumstance given the structure of much discrimination legislation.
If discrimination continues as a comparative concept, then some form of comparison
is necessary in determining prima facie discrimination. Comparator group analysis,
while criticised by some, appears to be a valuable method of analysis in the first step
of determining discrimination, but should never replace a more nuanced evaluation of
the deeper issues behind an allegedly discriminatory law. Mirror comparison analysis
especially has the effect of allowing for premature justification of disputed legislation,
and unquestioning acceptance by the courts of such disputed policy. Comparator
groups which include as part of their characterisation the disputed point of alleged
discrimination result in building it implicitly into the comparator group itself, in a
way that views the chosen comparator as the only possible comparison and which
lends legitimacy to the alleged purpose without considering how accurate or
meaningful the distinction is when considered against the situational background of
the case. To use comparator analysis as the sole assessment mechanism allows for
superficial considerations of the claimant's situation which denies them the right to
have the court question any problematic assumptions and fully address the underlying
legitimacy of the law.
Recent cases in both New Zealand and Canada indicate the evolving use of
comparator group analysis not as a formal, simplistic and definitive approach, but as
a flexible tool within a spectrum rather than the definitive approach. It is possible that
a move away from formal comparator group analysis, while maintaining a simplified
approach toward a consideration of comparison, could be appropriate and apt.
Viewing comparator group analysis not as a hard and fast rule, but as a flexible tool
which can expand or contract as needed, or as one factor within a spectrum rather
than the definitive approach, may be a useful way of approaching this analytical
method.
