Last year, I wrote a blog in which I discussed what distinguishes systemic discrimination from other forms of discrimination and introduced an analytical framework tailored to helping investigators and other decision-makers assess whether a system produces discriminatory effects.1
While understanding that analytical framework is essential, applying it in an investigation raises practical challenges. If the system, rather than only an individual decision or interaction, is the focus, this affects the scope of the investigation, who should participate and in what capacity, and what evidence should be gathered.
In this second part, I turn to some of these practical challenges and offer tips for planning a systemic discrimination investigation.
The first steps when planning a systemic discrimination investigation are to clearly define its scope and determine what, exactly, is being investigated.
In many cases, a complaint may initially be framed around an individual experience, such as a candidate not being hired or an employee being denied a promotion. Complainants cannot necessarily be expected to identify whether the issues they raise may have a systemic dimension. However, the allegations or evidence may suggest that the outcome cannot be understood solely by examining the individual decision and raise questions about the broader system within which it was made.
Where the possibility of a systemic issue is identified, the investigator (if external to the organization) should raise it with the client and clarify whether the mandate extends to that issue before investigating it further. Similarly, if a potential systemic issue emerges during an investigation, the investigator should confirm with the client whether it falls within the existing mandate and, if necessary, discuss whether the scope should be expanded.
Once the mandate has been clarified, the investigator must identify the relevant “system” at play. Depending on the circumstances, that system could be a recruitment or promotion process, an accommodation framework, a disciplinary process, or another set of interconnected policies, practices, and decision-making structures. The objective is to understand how that system works in practice: what are the main steps in the process, what rules and practices come into play, where decisions are made, and how discretion is exercised.
How the system is defined will shape what evidence needs to be gathered and who needs to be interviewed. A word of caution, however: systemic investigations can expand quickly as connections between different policies, practices, decisions, and other factors emerge. Adopting a systemic lens does not mean that every aspect of the organization becomes relevant. Investigators should remain anchored in their mandate and focus on what is necessary to assess the systemic issues under investigation.
Systemic investigations also require investigators to think differently about who should participate and in what capacity. Where individual and systemic allegations overlap, there may be individual respondents whose conduct is being investigated. However, where allegations concern how a broader system operates, it is generally the organization that is the respondent (which we will usually refer to as an “institutional respondent”).
This distinction is particularly important where individuals were involved in the process giving rise to the complaint but are not themselves the subject of an allegation. For example, a manager may have made the decision affecting the complainant without the manager’s conduct being alleged to be discriminatory. As my colleague Dana Campbell-Stevens highlighted in another blog,2 investigators should clearly identify the capacity in which individuals are participating and ensure that they are not inadvertently treated as respondents to allegations that have not been made against them.
Determining who else should be interviewed requires considering the evidence needed to understand the relevant system. Investigators will generally need to understand both how a process is designed or intended to operate and how it actually operates in practice. Documents such as policies, procedures, and evaluation tools can provide important evidence in both respects, but may not provide a complete picture. This is why, in addition to collecting evidence about the specific events or individual experiences at issue, investigators should speak with what I refer to as “system witnesses”: individuals who can explain how the process was designed, why particular requirements or practices exist, how decisions are made, and how the process is applied in practice.
Consider, for example, a hiring process similar to the one examined in Gaz Métropolitain.3 An investigator may need evidence not only from candidates affected by the process, but also from those who designed or administered the recruitment requirements, testing, and evaluation methods. Those who designed the process can explain why particular requirements were selected, while those who applied it can provide evidence about how the criteria operated in practice.
A common assumption is that investigating systemic discrimination necessarily requires numerical or statistical data. Such evidence can certainly be useful. Depending on the allegations, data concerning representation, hiring or promotion outcomes, disciplinary measures, or performance ratings may help identify patterns warranting closer examination.
However, relevant numerical data may not always be available. For example, an organization may not collect demographic data in a form that can be meaningfully connected to the process or outcomes under investigation. Fortunately, its absence is not fatal: courts and human rights tribunals have confirmed that statistical evidence, while useful where available and relevant, is not always necessary to establish systemic discrimination. Discriminatory effects may instead be established through other evidence, including how policies and practices operate, how decisions are made, and the experiences of individuals affected by the system.4
Systemic discrimination investigations require investigators to look beyond individual experiences and understand the broader structures within which they occur. At the same time, a systemic allegation does not necessarily lead to a systemic finding. The investigator’s task is to understand how the relevant system operates, follow the evidence where it leads, and recognize where limitations in that evidence constrain the conclusions that can responsibly be reached.
Once that analysis is complete, another challenge remains: presenting the findings in a way that makes the investigator’s reasoning clear. In Part 3 of this series, I will turn to some of the particular challenges involved in drafting a systemic discrimination investigation report. Stay tuned!
1 To catch up on the first part, see: Frédérick J. Doucet, “Understanding systemic discrimination: A practical framework for workplace investigations” (November 27, 2025), Rubin & Co. LLP's Blog, online: https://www.rubinandco.ca/blogs/understanding-systemic-discrimination-a-practical-framework-for-workplace-investigations.
2 Dana J. Campbell-Stevens, “Navigating complexities in workplace investigations concerning systemic discrimination” (October 22, 2025), Rubin & Co. LLP's Blog, online: https://www.rubinandco.ca/blogs/navigating-complexities-in-workplace-investigations-concerning-systemic-discrimination.
3 Commission des droits de la personne et des droits de la jeunesse c. Gaz métropolitain inc., 2008 QCTDP 24, conf. by 2011 QCCA 1201.
4 For example, see: Radek v. Henderson Development (Canada) Ltd. (No. 3), 2005 BCHRT 302, at paras 509–513; Commission des droits de la personne et des droits de la jeunesse c. Gaz métropolitain inc., 2008 QCTDP 24, at paras 55–67, conf. by 2011 QCCA 1201, at para 47.
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