Substantive Equality and Its Remedial Consequences

Abstract

In ‘Equality, Equity, and Algorithms: Learning from Justice Rosalie Abella,’ Martha Minow illustrates the practical import of Abella J’s equality jurisprudence by way of a contrast to US anti-discrimination law. Whereas US anti-discrimination law deploys a largely formal conception of equality focused on discriminator conduct, Abella J’s jurisprudence deploys a contextual and impact-centred conception of substantive equality. After highlighting key philosophical differences between these two conceptions of equality, this article considers whether substantive equality’s focus on impact, in contrast to the US focus on conduct, limits the law’s potential to condemn discrimination as a serious wrong.