The lasting influence of legal origins: Workplace discrimination, social inclusion and the law in Canada, the United States and the European Union

United States civil rights statutes and jurisprudence influenced anti-discrimination law in Canada and the European Union, most notably in their recognition of adverse impact discrimination. However, despite surface similarities, very different understandings of the non-discrimination requirements of equal opportunity emerged in each jurisdiction, and in turn influenced substantially different policy stances towards social inclusion. In this chapter, the authors seek to explain these similarities and differences. They argue that the different factual contexts of early legal decisions led to the development of very different paradigms of anti-discrimination law. Specifically, the U.S. focus on race resulted in a dominant paradigm of colour-blindness, whereas in Canada and Europe, the paradigm became one of difference-consciousness. Within the race-blind paradigm of the U.S., the responsibility of an employer to remove barriers that it had not intentionally or arbitrarily created proved less morally obvious and more technically difficult to implement than it did under the difference-conscious paradigms of Canada and Europe. These challenges to the extension of anti-discrimination law in the U.S. were increased in a jurisprudential, policy and political context that both associated discrimination with moral blameworthiness and had long resisted attempts to restrict employer prerogatives.