What American discrimination-based class actions could mean for Canada
Recently, a California court certified a class action against Google alleging that the company discriminated against female employees. While American, the case continues a developing trend of plaintiffs seeking to address alleged systemic discrimination claims through class actions. The case, and others like it, may lead to the filing of similar cases in Canada.
The representative plaintiffs allege that Google (i) paid women in certain positions less than men in the same positions performing substantially similar work, (ii) assigned women fewer responsibilities than men with comparable experience and education, and (iii) promoted women less frequently than men.
The Superior Court of California held that the case could be adjudicated using common evidence and that individual claims would be wasteful and redundant. There are over 10,000 women in the class; their claims date to 2013.
This case continues a trend of class actions based on discrimination that we have written about before. While this case was filed in the United States, workplace harassment and discrimination class actions have also been filed in Canada recently. However, Canadian cases have often focused on governments. For example, in 2020 the Federal Court of Canada approved the settlement of a class action by women who worked for the RCMP and who alleged they were subject to gender-based discrimination and harassment from 1974 to 2019. Similarly, in 2019 the Federal Court of Canada approved the settlement of a class action against the Canadian military regarding allegations of sexual harassment, sexual assault, and discrimination on the grounds of sex, gender, gender identity, or sexual orientation.
Discrimination-based class actions against companies remain relatively rare in Canada (though some have been filed). However, certification of American discrimination-based class actions—like the Google case—may increase filings in Canada. Many Canadian class actions follow substantially similar class actions in the United States. And certification is often a lower bar for plaintiffs in Canada. For example, only Ontario has a predominance requirement comparable to Federal Rule 23(b)(3) in the United States. In most Canadian jurisdictions, cases can be certified whether or not the common issues predominate over issues affecting individual class members.
While the certification analysis will be different in every case—and the viability and commonality of discrimination cases may turn on local workplace or human rights legislation—this trend is worth watching north of the border.