Why do we need anti-discrimination laws?

January 11, 2011

By Linda McKay-Panos
Executive Director
Alberta Civil Liberties Research Centre

CALGARY, AB, Jan. 11, 2011/ Troy Media/ – Some people question whether we need anti-discrimination law in Canada any longer. We do. Almost daily, we learn of people who have been denied equality, for example, those who have lost jobs because they are pregnant or been treated unfairly because of a disability.

Equality, along with liberty, is a fundamental pillar of liberal democracy. The Supreme Court of Canada has said that equality is “an elusive concept” which “lacks precise definition” but is much valued in our society, and our quest for it expresses some of our highest ideals.

Equality rights and anti-discrimination laws

To understand why Canadians place such a high value on equality, we must understand the good that anti-discrimination laws seek to achieve. They are intended to protect human dignity, personal security and social inclusion. They also seek to ensure equal access to various services and material goods, without discrimination based on race, religion, sexual orientation, and the like.

Imagine that you are denied a job or an apartment because of your skin colour, ethnic origin or sexual orientation. We can all recognize that this is unfair; anti-discrimination laws are the expression of this basic realization.

Because human dignity is difficult to pin down, some people suggest that anti-discrimination law should focus only on the material harm that arises from lack of equal access to goods and services. While it may be difficult to define exactly what wounds personal dignity, we should not minimize damage to our sense of self-worth. Human experience teaches there is little that is more painful than being denied your individuality, which is what discrimination is all about.

Section 15 of the Canadian Charter of Rights and Freedoms guarantees that:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability [emphasis added].

It can be used to fight discrimination by governments and the adverse effect of discriminatory laws.

Many human rights advocates hope section 15 will also – eventually – require government to eradicate social inequalities, especially poverty, which limit the access of many Canadians to justice, health care and education. To date, they have been disappointed with the lack of any such progress. For example, in 2004 the Supreme Court of Canada ruled that the Charter was not violated when Quebec reduced the welfare rate paid to those under the age of thirty to below subsistence level.

In addition to the Charter, provincial and federal human rights acts also deal with discrimination in areas such as employment, tenancy, services customarily available to the public (such as restaurants and hotels), and membership in professional organizations. But unlike the Charter, these anti-discrimination statutes apply not only to government but to the private sector as well.

This is good, because it is not only governments which should refrain from discrimination on grounds such as race, religion, gender and sexual orientation. Especially in connection with bread-and-butter issues, such as employment – the area in which the vast majority of human rights complaints in Canada are filed – it is essential that a duty of fairness is imposed by law and enforced.

Reasonable and justifiable exceptions

While both the Charter and human rights statutes make discrimination illegal, they also recognize that in some circumstances an action or decision which looks pretty obviously discriminatory may upon closer examination be quite the opposite. Consider the imposition of higher insurance rates on young male drivers than on young female drivers. This looks on its face like illegal gender discrimination.

In 1993 an Alberta court said the provision of driver’s insurance was covered by anti-discrimination law as a “service customarily available to the public.” But it continued, it was not fair to require young females to pay the same premiums as young males who have, as a group, a demonstrably worse driving record. It concluded that the differential approach used by insurance companies was “reasonable and justifiable” because there was no practical alternative method that would save the female drivers from having to pay higher rates than were warranted.

You may not agree with the outcome in this insurance case. However, it shows that what looks like discrimination in some abstract sense does not always contravene our laws when practical realities are examined. It also shows that sorting such things out is not a simple matter. And this is as it should be. Discrimination does real harm and what seems to be discriminatory should not be excused without compelling arguments and evidence.

Linda McKay-Panos is a lawyer and executive director of the Alberta Civil Liberties Research Centre.

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