Friday, February 17, 2012

Back to Basics: What is discrimination?

In the literal sense, discrimination refers to any unfavourable treatment directed at a particular person or group but not at others.  Imagine, for example, that I own a store, and I post a sign saying that I will refuse service to anyone wearing American Eagle.  That is clearly a discriminatory policy - I'm discriminating against people based on their choice of fashion and attire.

But is that illegal?  Almost certainly not.

It's common to think of the Human Rights Code as prohibiting 'discrimination', simpliciter.  It doesn't.

It's common to think of the Human Rights Tribunal as a forum for addressing all manner of hurt feelings and unfair treatment.  It isn't.

The Human Rights Code prohibits discrimination and harassment based on certain grounds in certain contexts.  It is not a forum for addressing general claims of unfairness.

Social Areas of Prohibited Discrimination and Harassment

Let's start by looking at the contexts affected by the Human Rights Code, or what are referred to as "social areas".  There are a few of them:  Employment; Provision of Services, Goods and Facilities; Accommodation (i.e. residence); Contracts; and Vocational Associations.

Most commercial dealings will be covered by the Code, but outside of commercial relationships the Code has limited application.  So if I refuse to socialize, generally speaking, with anyone outside of my racial or religious group, that may well be discriminatory on the basis of what would be considered a prohibited ground, but it's not usually going to be illegal.  (However, inside a workplace, such exclusionary conduct could be a breach of the Code.)  Consider romantic relationships generally.  Most people require that their romantic partners be of a specific gender and age range, and it is very common for religion, race, colour, and place of origin to play a major factor in the selection of romantic partners.  None of this is unlawful, because it doesn't fall within one of the applicable social areas.

Likewise, if I'm walking down the street and shout a racial epithet at a random member of the public, that may be highly inappropriate, but it probably isn't a violation of the Human Rights Code.

The three common ones are employment, services, and accommodation.  In employment, I'm entitled to not be discriminated against on the basis of certain prohibited grounds.  So an employer can't refuse to hire because of race, can't assign specific menial duties based on religion, can't fire somebody because of a disability, etc.  Moreover, there's also a measure of protection from one's co-workers:  If I'm being harassed by co-workers on the basis of a prohibited ground, then I may have a remedy against that co-worker, and also against my employer if my employer fails to take reasonable steps to protect me.

In terms of services, it's easiest to think of retail environments.  Refusing to serve somebody because of their race is illegal.  So too, in most contexts, is refusing to serve a disabled person with a service animal.  But services are really much broader than that.  Even policing has been seen as falling within this social area.

Accommodation is much narrower, referring specifically to residential tenancies.  It's also more nuanced:  A woman living alone and looking to rent out her extra room is not necessarily going to be bound to afford equal opportunities to prospective male tenants.

Prohibited Grounds

Surprisingly enough, the list of prohibited grounds is lengthy, and not uniform across different social areas.

In general, we're talking about grounds such as race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status, and disability. In accommodation, there's also a prohibition on discrimination on the basis of receipt of social assistance - in other words, you can't refuse to rent to somebody just because they're on Ontario Works.

These are pretty broad.  In general, we're looking at characteristics that are either beyond the control of the individual, or which are relatively immutable values/lifestyle choices.  (Marital and family status, for example, isn't exactly outside of an individual's control, but it isn't something you can turn on or off.  Same with citizenship, and religion.  These are things which can be changed, but we don't and shouldn't expect somebody to change them to conform with some sort of commercial expectation.)

They don't generally protect people from discrimination on the basis of more flexible decisions - fashion, hairstyle, etc (except to the extent that these may be proxies for prohibited grounds) - and moreover, aside from the protection of social assistance recipients for accommodations, there is no provision for economic rights in the Human Rights Code.

Business owners don't always grasp that distinction.  I once had a very successful businessperson argue that the requirement to accommodate disabilities is a violation of his human rights, as an often-arbitrary measure which impairs his ability to do business (he pointed out that he has had to install wheelchair-accessible washrooms in all his various businesses over the years, and not once has anyone with a wheelchair ever required them...which perhaps is unsurprising, given that his current venture at least is an athletic facility specializing in activities with relatively limited para-athletic interest); I had to explain to him that his view of "human rights" was not consistent with Ontario law.  Similarly, I have had employer clients asking "But what about our rights" when I explain their obligation to accommodate up to the point of undue hardship.

The Human Rights Code is not completely oblivious to the viability of a business.  There is the "undue hardship" qualifier on the obligation to accommodate.  But the Code, all in all, isn't designed to protect economic rights.  Nor does the Canadian Charter of Rights and Freedoms offer protection of economic rights at all.  (The United States Declaration of Independence spoke of "life, liberty, and the pursuit of happiness", but their XIV Amendment protects life, liberty, and property; by contrast, s.7 of the Canadian Charter of Rights and Freedoms guarantees the right to "life, liberty, and security of the person".)


These rights aren't absolute.  There are exceptions and limitations.  For example, the right to equal treatment in employment on the basis of disability can be denied where the employer cannot reasonably accommodate without undue hardship.  There are categories of exemptions, such as religious or philanthropic organizations whose mandates include service of particular groups identified by prohibited grounds.  There are certain provisions allowing preferential treatment in some circumstances - for example, preferential treatment of those over 65 is permissible.  Age discrimination protection usually doesn't extend to people under 18 in the first place, except in narrowly-defined circumstances.

Age discrimination is actually an interesting phenomenon.  A senior's discount is permissible as preferential treatment for those over 65, but service providers who set the senior's threshold elsewhere - i.e. age 60 - may be violating the Code.  Alternatively, because there are certain legal thresholds for tobacco and alcohol above age 18, service providers sometimes feel that they're erring on the side of caution by broadening the scope of services they won't offer to those under 19...but unless they're actually legally prohibited from offering such services (for example, sale of tobacco products), that would be unlawful discrimination.

Once, when I was in law school, I was in an "As Seen On TV"-type store with a number of friends, one of whom was 18 years old at the time.  There was exercise equipment there, and a sign saying that children "18 and under" were not permitted to use it.  That sign would be lawful if it said "under 18", but when it extended the prohibition to 18-year-olds, it probably crossed the line into illegality.  I joked with my 18-year-old friend that she should make a human rights complaint.

At the same time, the same level of scrutiny isn't necessarily applied to age discrimination as other prohibited grounds, because it is the one prohibited ground in which nearly all of us will experience or have experienced each and every state.  All adults were 18 years old at one point, and all of us expect that someday we will be older than 65.  Thus, mandatory retirement provisions are given a bit more flexibility, perhaps, because of the fact that they still ostensibly apply to everyone, and arguably aren't actually discriminatory in the most literal sense.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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