Inclusive Equality: The Relational Dimensions of Systemic Discrimination in Canada 9780773580886

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INCLUSIVE EQUALITY

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Inclusive Equality The Relational Dimensions of Systemic Discrimination in Canada COLLEEN SHEPPARD

McGill-Queen’s University Press Montreal & Kingston • London • Ithaca

© McGill-Queen’s University Press 2010 isbn 978-0-7735-3717-0 (cloth) isbn 978-0-7735-3718-7 (paper) Legal deposit fourth quarter 2010 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Aid to Scholarly Publications Programme, using funds provided by the Social Sciences and Humanities Research Council of Canada. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Canada Book Fund for our publishing activities.

Library and Archives Canada Cataloguing in Publication Sheppard, Colleen Inclusive equality: the relational dimensions of systemic discrimination in Canada / Colleen Sheppard. Includes bibliographical references and index. isbn 978-0-7735-3717-0 (bound). – isbn 978-0-7735-3718-7 (pbk.) 1. Equality before the law – Canada. 2. Civil rights – Canada. 3. Discrimination – Law and legislation – Canada. I. Title. ke4410.s54 2010 kf4483.c56s54 2010

342.7108'5

c2010-902233-5

This book was typeset by Interscript in 10.5/13 Sabon.

Contents

Preface

vii

Introduction

3

1 The Rise of Statutory Equality Rights: Confronting Systemic Discrimination and Complex Identities 15 2 Constitutional Equality: Challenges and Possibilities 37 3 Contexts of Inequality: Identifying and Remedying Discrimination 65 4 Developing a Systemic Approach: Experiential Knowledge and Sexual Harassment 80 5 Caring and Relations of Equality

103

6 Democracy and Relations of Equality 7 Conclusion: Toward Inclusive Equality Notes

149

Bibliography Index 241

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119 136

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Preface

I was born at the end of the “baby boom” era. My mother worked in the home, while my father worked long hours outside the home. My mother had worked as a nurse before having a family and my father was a doctor – professions steeped in egalitarianism and humanism. My admiration for their commitment to social change, community involvement, and optimism about the human spirit continues to deepen as they get older, advocating for same sex marriage in their church, fundraising for HIV-AIDS in Africa, working for Amnesty International, and assisting in refugee sponsorship. My mother had six children between 1952 and 1962. We were all girls. “All girls?” I would be asked. “Yes, all girls.” “No brothers?” “No brothers.” “Oh, your poor father!” was the standard remark. “Oh no,” I would reply, “on the contrary. He is very lucky.” Somewhere deep inside I felt the need to resist the suggestion that my father could have felt the least bit unhappy by the arrival of any one of his beaming baby daughters; and my father always agreed with me. Although I did not analyze it at the time, in retrospect, I think my response was connected to a very important principle of equality rights – respect – and a recognition that we have to hold on to it, reassert it, and voice it whenever it risks being eroded or undermined, even in the seemingly insignificant small events that make up our lives. So that persistent and patterned response of empathy towards my “poor” father sparked a commitment to girls’ and women’s rights that I have held onto ever since. Having five sisters taught me about sisterhood in an immediate and tangible way. But what echoes most in my mind is my older

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sisters singing loudly to announce a meeting of the sisters, “Calling all Girls! Calling all Girls!” The strength of our voices and the assertion of the right to take up space and plan together remind me of the power and energy of girls. My sisters – Jan Sheppard Kutcher, Wendy Sheppard, Dale Sheppard, Robyn Sheppard, and Dawn Sheppard – taught me the values of feminism, even as a little girl. They continue to give me unconditional support. Special thanks to Dale Sheppard for suggesting the cover artwork – a children’s mural project, done as part of the Art Gallery of Nova Scotia Summer School of the Arts. I am now a mother of a son and daughter. And as I watch my son grow older, I have strengthened faith in boys and realize the importance of including them in the processes of social change. In my daughter I hear a strong and emerging voice for social justice. Nicolas and Kara definitely slowed down this book. Yet their presence has made my work much more profound, giving me new insights and deepening my commitment to contributing in some small way to making a better world for the generations yet to come. I am constantly in awe of all they know. I wish to express my deep appreciation to my research students at the Faculty of Law, McGill University. My engagement with research and scholarship on equality rights has been enriched by their knowledge, insights, and energy. Thanks first to Monika Rahman, who played an invaluable role in helping me to complete this project, providing critical support during the final editing, research, and publication process. She is a brilliant student who is truly a colleague. My sincere thanks as well to the many other students whose work was so important to the journey of this book: Helen Nowak, Yasmina Benihoud, Mercy Mutale, Emilia Ordolis, Alison Gray, Pauline Grégoire, Andrew Unger, Mallory Cook, and Jameela Jeeroburkhan. I also wish to thank the McGill Faculty of Law and the Centre for Human Rights and Legal Pluralism for providing me with collegial and institutional support for this project. Special thanks to my colleagues Vrinda Narain and Adelle Blackett and to the two anonymous reviewers whose comments helped me to improve the final manuscript. I also greatly appreciated the editorial insights and assistance of Leila Marshy and Joan McGilvray of McGill-Queen’s University Press. This book project is an effort to synthesize and integrate much of my thinking and scholarship regarding equality and discrimination developed over a number of years. Some of the concepts and ideas in chapter 1 were discussed in“Of Forest Fires and Systemic Discrimination:

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A Review of British Columbia (Public Service Employee Relations Commission) v. BCGSEU,” (2001) 46 McGill L.J. 533, and in “Grounds of Discrimination: Towards an Inclusive and Contextual Approach,” (2001) 80 Canadian Bar Review 893 (also published in Les 25 ans de la Charte québécoise, Yvon Blais, 2000). Chapter 2 draws on previous scholarship in the constitutional domain, including “Constitutional Recognition of Diversity in Canada,” (2006) 30 Vermont L. Rev. 463; “Constitutional Equality and Shifting Conceptions of the Role of the State: Obstacles and Possibilities,” (2006) 33 Supreme Court L. R. (2d) 251; also published in Sanda Rodgers, Sheila McIntyre and Mary Eberts eds. Strategizing Systemic Inequality Claims: Equality Rights and the Charter (Toronto: Lexis-Nexis, 2006) 251-68 and “Inclusive Equality and New Forms of Social Governance,” (2004) 24 Supreme Court Law Review (2d) 1. Chapter 3 builds upon ideas that I developed with Sarah Westphal in our article “Narratives, Law and the Relational Context: Exploring Stories of Violence in Young Women’s Lives,” (2000) 15 Wisconsin Women’s Law Journal 335. It is also based on research done during my year visiting the Centre de recherché en droit publique at the Université de Montréal, including a presentation of my research published as a book chapter: “Theorizing the Context of Justice,” in Ysolde Gendreau ed. Developing Law with Doctrine (Thémis: Université de Montréal, 2006), 31-57. The ideas on solidarity in chapter 7 were first developed in “The Promise and Practice of Protecting Human Rights: Reflections on the Quebec Charter of Human Rights and Freedoms,” in N. Kasirer and R. MacDonald eds., Mélanges Paul-André Crépeau, (Éditions Yvon Blais: 1997) 641-78. I am grateful for permission from Yvon Blais to use a few shorts excerpts from that chapter. Two chapters are edited, revised and updated versions of previously published articles, including: “Systemic Inequality and Workplace Culture: Challenging the Institutionalization of Sexual Harassment,” (1995) 3 Canadian Labour and Employment Law Journal 249 (reproduced in chapter 4, with the kind permission of Lancaster House), and “Caring in Human Relations and Legal Approaches to Equality,” (1993) 2 National Journal of Constitutional Law 305. The financial support of the Social Sciences and Humanities Research Council provided important resources for this project for which I am most grateful. This book is the final output of my research grant on Substantive Equality: Rethinking Rights, Relationships and Remedies. This project also benefit from financial support from the

McGill Faculty of Law and from a Scholarly Publications Grant from the Canadian Federation for the Humanities. Finally, I wish to thank my husband, Derek Jones, from whom I have learned much about the richness and complexities of human identities – of the overlapping injustices linked to race, class, social privilege, labels, cultural determinism, and chance. In his insistence on truth and his unwavering commitment to a justice based on unbounded humanitarian principles, he has had a profound effect on my thinking about equality.

INCLUSIVE EQUALITY

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Introduction Justice means children with full bellies sleeping in warm beds under clean sheets. Mari Matsuda1

I have often reflected upon the wisdom of Mari Matsuda’s words, which remind us of the importance of articulating the meaning of human rights concepts in concrete, everyday terms. For if we cannot translate the rhetoric of justice, democracy, human rights and equality into the concrete contexts of everyday injustices, we will not be able to build upon these norms to effect social change. And optimistically, that is the purpose of this book: to engage the reader in thinking about how the legal norm of equality may assist us in understanding and remedying the continued realities of social inequality and exclusion. In modern society, equality is widely endorsed as an ideal that underscores the essential fundamental dignity of the individual. It is also understood that inequality persists and is linked to discrimination against members of certain groups in society, including women, racialized communities, Aboriginal peoples, persons with disabilities, religious minorities, sexual minorities, the elderly, children and socially marginalized groups (such as welfare recipients).2 Groupbased patterns of inequality that have long and continuing histories make clear that the ideal of equality has not yet been realized; for some groups, it may even be growing more distant. While philosophers, social theorists, and community activists have long been concerned with problems of inequality, the emergence of more comprehensive protection, in the form of a legal right to equality in Canadian law, is of relatively recent vintage. As in other domains, concepts in law are dynamic and the legal meaning of equality has continued to evolve and expand.

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Beyond a commitment to generating new thinking and ideas about the legal meaning of equality rights, this book grew out of a concern with access to justice in the human rights domain. Access to justice, in its fullest sense, does not simply mean access to legal tribunals, procedures, and courts.3 Rather, it is concerned with ensuring the effective realization of equality rights, preferably through prevention of discrimination and social exclusion. While it is important to articulate expansive legal concepts in the courtroom and in human rights tribunal settings, it is also critical to think about how our understanding of equality impacts upon our social relations in everyday life. In the multicultural communities in which most of us live, issues of social identity, group rights, inclusion, and exclusion are present at the interstices of everyday life. Cultural, ethnic, language, sexual, racial, physical, and religious differences are experienced in the public and often in the private spaces of our lives. What significance do legal equality norms have to mediating choices, decisions, policies, and actions at work, at school, or in the community? In this book, I argue that to secure greater equality, it is critical to examine both the inequitable substantive outcomes in various social contexts as well as unfairness and exclusions in the structures, processes, relationships, and norms that constitute the institutional contexts of our daily lives. Examining inequality through a substantive, procedural, and relational lens provides essential insights into the dynamic reproduction of inequality and exclusion over time. It reveals how some institutional relationships reinforce and accentuate inequality, whereas others hold the potential to promote greater inclusion and equality. The legal right to equality, therefore, in addition to being informed by a concern with substantive outcomes, must be attentive to promoting inclusion in the decision-making processes of everyday life. Inclusive equality embraces a vision in which cycles of exclusion are broken as a result of the transformative processes of institutional and social change. Such processes occur at many levels, including the individual, institutional and societal. Most immediately, an inclusive equality approach demands that we ask ourselves what power we have as individuals to contest and resist exclusion and marginalization, either in our own lives or in the lives of those around us. It also requires an assessment of how individual and group agency is constrained by social, economic, and political institutional and cultural forces. Individual and group agency as well as social solidarity in

Introduction

5

everyday contexts are critical precursors to equality. Moreover, legal norms infuse and shape social and systemic relationships and practices. The right to equality, if it is to flourish in our society, must be normatively embedded in the nature and quality of the everyday relationships that constitute our lives. Although governments, courts, and legislatures have a critical role to play and fundamental responsibilities to promote equitable social relations, it is not sufficient to proclaim equality from above: it must be built from below. Thus, our willingness and capacity to re-imagine and re-invent relationships, institutional cultures, and social governance practices will be central to whether, how, and when inclusive equality emerges. To lay the groundwork for developing the concept of inclusive equality, I begin by reviewing legal developments regarding the protection against discrimination in Canada. Chapter 1 traces changing understandings of the social problem of inequality and explores how these shifts affect legal developments regarding the legal meaning of discrimination, culminating in legal recognition of systemic discrimination. What becomes apparent from even a cursory review of Canadian history is the failure of judges and legislators to perceive discrimination as a problem for many decades following Confederation in 1867. Explicitly discriminatory government policies and laws provide the backdrop for judicial refusals to acknowledge discrimination as a civil wrong. It was only in the wake of World War II that public law was revised to eliminate the most egregious forms of state-legislated discrimination. Gradually, as well, discrimination in the institutions of everyday life was also recognized as a social problem. It was viewed, however, as an isolated, exceptional phenomenon involving the direct differential treatment of individuals based on unfounded negative stereotypes about the group(s) to which the individual belonged. The legal response was to prohibit discriminatory differential treatment and exclusion. Thus the first major development in equality rights law was the rise of anti-discrimination legislation that extended statutory protection against discrimination to the domains of employment, public services, and housing.4 While it was and remains important to protect individuals from discriminatory acts motivated by unfounded derogatory, groupbased stereotypes, the more systemic complexion of inequality was increasingly acknowledged beginning in the 1970s. In the mid1980s, the Supreme Court of Canada recognized that a seemingly

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neutral employment policy that was not intended to cause discrimination could nonetheless constitute a form of “adverse effect discrimination.”5 In so doing, the Court signaled the need to question the apparent neutrality of dominant social norms and institutional practices. Indeed, identification of adverse effect discrimination led to the further recognition of systemic discrimination, which can be understood as discrimination that is pervasive and institutionalized in patterns and practices of social exclusion and disadvantaging. While often associated with adverse effect or indirect discrimination and the inequalities hidden at the interstices of dominant norms, systemic discrimination may also involve direct discrimination that is both widely tolerated and institutionalized. The cumulative and overlapping systemic effects of direct and indirect discrimination were described in a landmark equality rights case involving women seeking blue-collar jobs in the Canadian National Railway Company. Chief Justice Dickson explained that, “systemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination.”6 He went on to emphasize that the “discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of ‘natural’ forces, for example that women ‘just can’t do the job’.”7 As understandings of discrimination expanded to embrace institutionalized and systemic policies and practices, the need for alternative legal strategies emerged. Beginning in the 1980s, therefore, a series of proactive legislative initiatives aimed at identifying and preventing discrimination were enacted, including the federal Employment Equity Act,8 the federal contract compliance program,9 and provincial initiatives on legislated pay equity.10 The 1980s also witnessed the constitutional entrenchment of equality rights in the Canadian Charter of Rights and Freedoms.11 Though framed more broadly as equality rights, they also included specific protection against grounds-based discrimination. Inspired by the expansive interpretations of discrimination in the statutory domain (where both direct and adverse effect discrimination had been recognized), the Supreme Court soundly rejected earlier formal conceptions of legal equality and endorsed an effects-based conception of substantive equality.12 Chapter 2, therefore, explores some of

Introduction

7

the key dimensions of the constitutionalization of equality rights. It begins with a review of the doctrinal emergence of the concept of substantive equality, a concept that was to be informed by purposive and contextual interpretive methodologies. To discern whether or not similar treatment is consistent with equality, judges elaborated an effects-based analysis attentive to histories of social disadvantaging within specific historically subordinated groups and informed by an overarching concern with respect for human dignity. The constitutional reforms of the 1980s also included express recognition of Aboriginal and linguistic minority rights and affirmed multiculturalism and gender equality as important interpretive principles.13 These provisions were also closely linked to emerging theories of substantive equality and raised complex questions about constitutional recognition of collective, community, and groupbased rights. Chapter 2 also examines how shifting conceptions of the role of the state affect legal equality rights. A classical liberal vision of the state is well-aligned, conceptually speaking, with formal equality. Governments can comply with a constitutional mandate of equality simply by according equal treatment to all individuals or by treating likes alike. They do not have any positive rights obligations but are bound only by a negative rights vision that dictates non-interference by the state in the private sphere. The regulatory state of the twentieth century, however, goes far beyond the classical liberal vision of government. Indeed, the postWorld War II Keynesian social welfare state ushered in a much more interventionist and instrumental role for government that extended to securing the conditions of individual social, physical, and economic well-being. Such a positive rights vision resonates with the underlying egalitarian assumptions of substantive equality. And yet, by the mid-1970s and into the 1980s, the Keynesian social welfare state in Canada was beginning to unravel as emerging ideologies of neo-liberalism undermined support for the redistributive state.14 It was also at this time that courts and tribunals began interpreting and applying statutory and constitutional equality rights. How did these shifting understandings of the role of government and public policy affect legal interpretation and the socio-economic challenges of inequality? While initially the courts appeared to endorse a substantive vision of equality even as the Keynesian welfare state was being restructured, it has been suggested that subsequent interpretations of

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equality reflected the influences of neo-liberalism and in some cases resulted in a retreat to a discourse of formal equality.15 Furthermore, regulatory and public policy approaches continue to evolve. It has been observed that some governments, while sensitive to the neo-liberal critique of big government, have not seen privatization and deregulation as the solution. In the wake of 9/11 and growing concerns about public security, and most recently in the face of a global economic crisis, it is widely acknowledged that government intervention is necessary and in need of expansion.16 One compromise between a social welfare state and the privatized, free market non-interventionist state of neo-liberalism/neo-conservatism has been described by Anthony Giddens as the “third way.”17 He advocated shifting from a social welfare to a social investment state, a state that invests in the human and social capital of children and citizens: in education, retraining, community networks, and fostering partnerships with diverse communities. He further articulated new forms of governance built upon innovative public-private partnership models.18 These new public policy directions, representing something of  a hybrid between the social welfare and the neo-liberal state, have important implications for equality rights.19 Challenging some of the  fundamental premises of substantive equality, they require new  thinking about the legal definitions and application of antidiscrimination protections and equality rights. The challenges of understanding constitutional equality in a world characterized by shifting conceptions of the role of the state reinforces the importance of developing theories of equality that are attentive to institutional processes, power imbalances, exclusion and inclusion. Whereas formal equality in law was premised on a straightforward procedural rule of equal treatment or the similar treatment of those who are similarly situated, substantive equality is based on the idea of equal outcomes or results. The concept of substantive equality, however, raises significant questions about relative degrees of inequality. What effects or outcomes must be equal in a society where inequality is pervasive? How do we decide what satisfies the requirement of equitable outcomes? Judicial assessments of this question have necessarily been deeply subjective. While it is essential to evaluate the concrete effects of substantive inequality in society, I suggest that we need to supplement this analysis with a more explicit revisiting of process issues. Thus, inclusive equality emphasizes both the substantive and procedural dimensions of equality rights.

Introduction

9

Building upon commitments to substantive equality, inclusive equality prompts an inquiry into both the actual realities and conditions of inequality and the social, political and institutional processes that account for its reproduction. An inclusive conception of equality that incorporates attentiveness to both substance and process is necessarily systemic and relational. Since the concept of inclusive equality can only be developed if we examine both the substantive effects and exclusionary processes that occur in the public and private contexts of everyday life, contextualism is critical. Indeed, the Supreme Court of Canada has endorsed a contextual methodology in its equality rights jurisprudence.20 Although the Court has enumerated certain contextual factors for identifying violations of constitutional equality, a more systematic and detailed understanding of context-based methodology is needed. In chapter 3, therefore, three distinct levels of contextualism, including the micro-context, meso-context, and macro-context, are examined to discern how they assist us in naming and identifying the effects and processes of social inequality and discrimination. With respect to the micro-context, a contextual approach requires us to consider how our own social location and experiences inform our understandings and observations of the world. It also demands an inquiry into the contextual realities of social disadvantage in the lives of individuals from groups without power or privilege in society. Drawing on the experiential knowledge of those without power or privilege is one means for accessing a contextual appreciation of inequality. Connecting these narratives to the larger histories and patterns of social inequality reveals how individual stories reflect broader group-based realities of discrimination. A second, meso-level of contextualism concerns institutional relations of equality and inequality. They focus on the intersection between the formal legal norms of equality and non-discrimination and the informal norms that affect the day-to-day practices of the myriad institutions of society, such as workplaces, corporations, educational institutions, families, religious organizations, and communities.21 Just as legal norms are not static or monolithic, institutional norms are dynamic and often contested. Nonetheless, recognizing the existence of these other institutional sources of normativity that may complement or compete with certain legal norms is critical to the project of equality. The complex interaction of formal and informal law must be taken into account when formulating effective strategies for

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remedying systemic discrimination. The required direction of institutional change is informed by publicly recognized equality norms embodied in formal human rights law, but the processes of change extend beyond official law enforcement to the law-making implicit in the institutional dynamics of governance. At a third level, a contextual approach means situating specific legal questions and controversies in their larger social, economic, political, and familial contexts. This macro-context is essential to broaden our analysis of social exclusion and systemic discrimination beyond specific institutions. The larger socio-economic and political context may well undermine equality rights and impede institutional transformation. Corporations, universities, schools, workplaces, and families operate within a larger societal context where patterns of inequality are intricately interwoven. Thus, for example, inequality in the family, poverty, and inequitable access to education all impact equality at work. Despite its potential breadth, a contextual approach is not a completely unstructured consideration of all social facts. It does not reject principle for relativism. Rather, it is a matter of systematically seeking knowledge about individuals whose lives occupy the margins of society and social institutions – those without power and privilege – who are too often forgotten or objectified by traditional academic scholarship and legal analyses. A contextual approach requires an assessment of the micro, the institutional, and the macro – the personal stories, the institutional structures, and the social and systemic patterns and histories of inequality. To illustrate a broad contextual analysis that integrates experiential knowledge, an analysis of institutional practices and policies, and attentiveness to the larger socio-structural contexts of inequality, chapter 4 highlights the systemic dimensions of sexual harassment in the workplace. Whereas sexual harassment in the workplace is often analyzed through an individualist lens that focuses on the inappropriate conduct of the perpetrator, a broader analysis of the phenomenon of sexual harassment suggests new strategies for its prevention. The chapter examines how micro-contextualism builds an analysis of sexual harassment upon the experiential narratives of women workers. A meso-contextual analysis then connects the lived experience of sexual harassment to institutional and systemic factors rather than treating it as a problem of aberrant and isolated individual misconduct. In this way, the stories of women who have

Introduction

11

faced harassment reveal systemic patterns in the incidence of harassment linked to isolation of women workers, the sexualization of women’s work, discriminatory workplace cultures, and the hierarchical power structures of modern bureaucracies. These systemic factors, which accentuate vulnerability to harassment, are also deeply linked to broader socio-economic and structural realities of the macro-context of the global economy. We again see how a robust conception of equality is enhanced by developing an analysis that engages with both substance and process issues at multiple levels, probing the ways in which inequality and exclusion are embedded in individual stories, institutional policies and practices, and larger societal and workplace structures. In addition to the need for a multi-layered contextual analysis, an inclusive equality approach requires us to think about how inequality and discrimination are dynamic and reproduced through individual and institutional relationships over time. What kind of institutional, individual, and social relations promote inclusion and equality as opposed to exclusion and discrimination? What kinds of human relationships create, perpetuate, and rationalize inequality, and what is the nature of human relationships that engender equality? We could simply look to substantive results or conditions and decide what outcomes should be provided to every individual to the same degree, but in a diverse society this could end up collapsing into an inquiry into human relationships. In other words, securing greater equality in access to economic and social well-being, community leadership opportunities, food, shelter, healthcare, education, and cultural activities on a long term basis will require more than a redistribution of income. It will require a restructuring of human relations. Two important types of relationships are highlighted in this book: relations of care and democratic relations. While neither of these relations is currently prevalent in legal analyses of discrimination and inequality, I suggest that they are both critically important to the creation of relations of equality. They both insist upon utilizing experiential knowledge of inequality (micro-context), and they both address the quality and character of social relationships (institutional context). Furthermore, they are both linked to key concepts that bridge public and private life and social governance (macro-context). In chapter 5, I explore the significance of relations of care to the remedying of inequality. Inspired by the wisdom of Patricia Monture, who

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articulated the integral connection between equality and caring, I examine the meaning and practice of caring.22 How does the absence or presence of caring in human relationships contribute to institutional and social conditions of both inequality and equality? I observe that caring undertaken by an individual with greater social power and authority across a hierarchical power divide is often aimed at transforming the relationship of unequal power to an eventual relationship of equality. In contrast, care work, when administered by individuals with less power for persons in more dominant social positions, most often reflects a permanent condition of status-based inequality and entrenches the reproduction of social privilege.23 I maintain that attentiveness to the institutional dynamics of relationships of care may assist us in understanding the risks of entrenched social inequality and the possibility of greater societal equality. We may also be able to construct models for positive caring relationships across institutional power divides, such as in teaching, mentoring, and the provision of personal services to those in need. In such contexts, the individual providing the care is in a position of power, but the inequality of the individual being cared for is not permanent. In chapter 6, I examine the contested and yet widely endorsed concept of democracy and the extent to which inclusive equality would be enhanced by more democratic and participatory structures of power and decision-making in the institutional contexts of daily life. Advocacy of more democratic governance within societal institutions is directly at odds with the historical and continued reality of the non-democratic and hierarchical organization of most aspects of private and public institutional life. It resonates with an approach that builds upon experiential knowledge of inequality, giving greater decision-making power to those at the bottom of institutional structures. Yet, democracy does not always secure greater equality. To create a democratic equality-enhancing approach, it is necessary to ensure adequate protection and structural representation of minority voices, a concern that democratic theorists have increasingly addressed. Iris Marion Young, for example, provides us with important insights for advancing inclusion and democracy by taking structural group-based differences into account.24 Despite potential risks of exclusion, greater democratic governance in social, economic, and political institutions still appears to provide an important and underutilized pathway to equality. Finally, chapter 7 revisits the ramification of the ideas presented in this book on our everyday lives. I examine individual and group

Introduction

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agency, noting the need to reinforce such agency. As Kathryn Abrams observes, we live in a world characterized by “partial agency,” in which agency is constrained by systemic and structural inequities and differences in power.25 There is, therefore, a pressing need to develop mechanisms for amplifying the voices and power of those who experience discrimination and institutionalized inequalities and in so doing to secure more inclusive conceptions of citizenship.26 This chapter also examines solidarity as a concept that provides a pathway to reconciling diversity and shared community identity. Solidarity allows for common action across differences, while also allowing differences to be retained and respected. Solidarity allows for unity through shared action without reducing the complexities or denying the diverse realities and identities of different groups. Lastly, this concluding chapter revisits the idea that, despite the need for individual agency, group-based solidarity and social change in the institutional practices and norms of everyday life, we must still insist upon a robust conception of state responsibility for the effective enjoyment of equality. While equality rights must evolve in a context in which traditional conceptions of governance and law are changing, our collective and public responsibility for securing social and economic inclusion and the equitable exercise of human rights should not be forgotten. The public domain of government is an important area in which to express and exercise our collective responsibility for addressing and redressing the structural, institutional, and systemic conditions of inequality. Even in an era of privatization and globalization, there remains a critical and important role for local and domestic governments to assume their responsibilities to enhance the social, economic, and political conditions conducive to the effective enjoyment of equality.27 In writing this book, I have had to confront the question of my readership. For whom am I writing? My professor voice told me to write for lawyers, judges, the academic community, and government policy-makers. My feminist voice told me to write for those who live the realities of inequality, those who will most certainly be required to assume leadership in transforming social institutions in the direction of equality. My optimist voice told me I could do both: write a book that would bridge theory and practice, reject and explain disciplinary boundaries, and be professional in the truest sense of the word through the direct and simple expression of complex ideas, guided by a commitment to enhancing genuine access to the justice of equality.

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I have also considered the relevance of these ideas beyond the Canadian context. My analysis is rooted in concrete cases and issues arising in Canada and is clearly aimed at assisting those working in human rights law and policy in Canada. However, it is also my hope that this book will speak to those interested in equality rights in other countries. In many countries and internationally, there is a growing and shared commitment to developing new and creative approaches that will ensure effective access to human rights justice in the domain of equality.

1 The Rise of Statutory Equality Rights: Confronting Systemic Discrimination and Complex Identities Throughout the nineteenth century and well into the twentieth century, discriminatory exclusions were pervasive in Canada and accepted in judicial understandings of both the common law and civil law. Judges allowed discrimination as an inevitable byproduct of freedom of contract or as an integral component of private property rights.1 Private prejudices were beyond the reach of the rule of law. The failure of courts to conclude that discriminatory exclusions violated fundamental public policy and legal standards, such as compliance with “good morals and public order,” attests to how discrimination can be embedded in the dominant normative fabric of a society.2 It is not surprising that private law principles reinforced and perpetuated inequality when public law at the time explicitly endorsed discriminatory policies. Particularly in the latter part of the nineteenth century and up until the post – World War II era, overt racism, premised on reigning ideologies of white supremacy, was codified in laws and state policies.3 While slavery had been abolished throughout the British colonies in 1834, its legacy persisted in the form of overt racial exclusions against the black community in Canada.4 Racist exclusions in immigration, employment, and voting entitlements were also legislated against Chinese and Japanese Canadians.5 During World War II, thousands of Japanese Canadians were interned and their property confiscated.6 Aboriginal peoples were subjected first to colonial rule and then to explicit policies of assimilation prior to and throughout most of the twentieth century.7 Jewish immigrants fleeing Nazi Germany were refused entry into Canada while domestic discriminatory policies limited the Jewish community’s access to

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Inclusive Equality

universities and professions even after the war.8 Women and married women in particular, were not treated as equal citizens in law. Public and private law exclusions and discrimination were buttressed by “separate spheres” ideology, mythologies of motherhood, and stereotypes about the capacities and skills of women.9 Women were denied voting entitlements and legal capacity, and excluded from many occupations and professions.10 Explicit discrimination against those with mental or physical disabilities was reflected in social policies premised on eugenics, segregation, and institutionalization.11 Discrimination against gay men took the form of criminalization of their sexuality, while lesbianism was invisible to the law – beyond legal recognition or penalty.12 These exclusions were embedded both in formal laws and in the dynamics of civil society. The culture of exclusion was so pervasive that it risks being invisible in the legal and political history of Canada; yet it forms the foundational context for understanding the meaning and significance of equality rights in the modern era. Equality rights law reform emerged in the wake of World War II as the international community recognized egregious wartime injustices as violations of human rights. The 1948 Universal Declaration of Human Rights included equality as one of its foundational principles, affirming in Article 1 that “[a]ll human beings are born free and equal in dignity and rights.”13 During this period, Canadian law reform ended the most overt, government-sponsored forms of discrimination, such as racist exclusions in immigration, employment, and voting laws.14 The failure of Canadian courts to develop private law doctrines to remedy discriminatory treatment in employment, housing, and services made further legislative reform necessary. Saskatchewan was the first province to introduce comprehensive human rights legislation in the post-World War II era; other provinces soon followed.15 Quebec passed the Charter of Human Rights and Freedoms in 1976,16 and the federal government enacted the Canadian Human Rights Act in 1977.17 Statutory human rights protections set out basic prohibitions against discrimination in specific contexts (i.e., employment, housing, education and services) on the basis of an enumerated list of grounds (i.e., race, religion, sex, colour, national and ethnic origin, age, disability, and social condition). Sexual orientation was added in 1977 in Quebec and eventually added in other jurisdictions, in some cases in the wake of constitutional litigation.18

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Implicit in the anti-discrimination reforms of the 1960s and 1970s was an understanding of discrimination as group-based harmful treatment or exclusion based on negative stereotypes.19 Discrimination was generally believed to be a discrete, intentional act that could be redressed through a retroactive complaints-based process. Most institutional decision-making was presumed to be fair, rational, and based on individual merit or other pertinent, non-discriminatory criteria. Thus, instances of discrimination were treated as isolated events caused by individual prejudices.20 Such discriminatory behaviour was accordingly prohibited in human rights legislation and subjected to a retroactive complaints process for non-compliance. Legal regulation took the form of “command and control” legislation. Prohibited practices were enumerated and retroactive remedies provided for non-compliance. Enforcement was to be secured through state-controlled investigative and adjudicative processes in the wake of alleged violations. Such an approach reflects an instrumentalist understanding of law: in the face of an identified social problem, law reform is presumed to prompt a shift in human behavior to eradicate the mischief at which the legislation is directed. While this formal complaints-driven approach to human rights enforcement continues to predominate, its effectiveness has been the focus of considerable debate and public inquiry.21 By the 1980s, several significant changes occurred in our understanding of the problem of discrimination. As schematized in the chart below, five major shifts may be observed. First, there was a shift from viewing discrimination predominantly as exceptional and discrete to understanding inequality as systemic and embedded in a complex interplay of institutional relations, practices, and policies. As a result, the problem of inequality, once located in the individuals or groups labeled “different,” was increasingly understood as a product of social constructs, systemic realities, and dominant norms. Second, rather than focusing on the intentional discriminatory attitudes of individual perpetrators, the experiential effects of inequality and exclusion became the litmus test for discrimination. Third, a formal equal treatment definition of equality was replaced with one that recognized the possibility of discrimination resulting from adverse effects of apparently neutral rules and policies. As a consequence of this shift, the traditional “equality as sameness” standard was replaced with a legal requirement that differences be acknowledged and accommodated. In some cases, recognizing diversity

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shift from:

to:

Viewing discrimination as predominantly an individual problem linked to exceptional and discrete incidents.

Understanding discrimination as systemic, embedded in a complex interplay of institutional relations, practices and policies.

A focus on the discriminatory attitudes of individual perpetrators.

A focus on the experiential effects of inequality and exclusion.

Viewing discrimination as differential treatment.

Acknowledging adverse effects discrimination resulting from the differential effects of apparently neutral policies and similar treatment.

Individual remedies and accommodation.

Systemic remedies and institutional transformation.

Understanding problems of discrimination in terms of distinct, homogeneous social groups.

Recognition of overlapping inequalities linked to complex, intersecting, and multiple identities.

meant group-based differential treatment; in other contexts, it resulted in changes to rules and practices for everyone, or institutional change. Finally, there was a broadening in our understanding of discrimination to recognize that social groups are not internally homogeneous and that individual identities are often complex, multiple, and intersectional. It is useful to examine these shifts in the interpretation of antidiscrimination protections prior to turning to constitutional equality rights because the legal definitions, approaches, and principles developed in the statutory domain informed the subsequent elaboration of constitutional law on equality. In so doing, however, it is important to remember that Canadian society belies to the promise of human rights reform. Social inequalities and exclusion are deepening in the face of shifting domestic and international policy responses and the new socio-economic problems in a globalizing era. Thus, it is critical not to presume linear progress – from denial of equality to affirmation – simply by pointing to formal law reform.22 The question of effective protection of equality is a much more complex story that implicates fundamental questions about the role and meaning of law, the intersection of law and society, the capacity of law to change social practices and attitudes to create a culture of

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inclusion, and the effects of social and economic relations on the promotion of, or resistance to, law reform.

e x pa n d i n g l e g a l d e f i n i t i o n s of discrimination One of the most significant dimensions of the evolving interpretation of equality was the expansion of the legal definition of discrimination in the 1980s to embrace not only direct discrimination but adverse effect discrimination as well (also referred to as indirect or disparate impact discrimination). Direct discrimination occurs when individuals are subjected to detrimental differential treatment because of their membership in a particular group(s). Prejudices and stereotypes about the abilities and characteristics of individuals from certain groups are often at the root of direct discrimination, which explains why it is sometimes referred to as intentional discrimination.23 Adverse effect discrimination, on the other hand, acknowledges that laws, policies, or practices that appear neutral on their face may affect individuals and groups differently depending on their life circumstances and characteristics. In the first Supreme Court of Canada decision to recognize adverse effect discrimination, Ont. Human Rights Comm. v. SimpsonsSears,24 Justice McIntyre explained the distinction between the two types of discrimination: Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, “No Catholics or no women or no blacks employed here.” … On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force.25 The Court went on to find that a rule requiring store employees to work on Saturday had an adverse effect on Seventh Day Adventist employees whose Sabbath is Saturday. The Saturday work rule,

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therefore, was found to be discriminatory on the basis of religion – in other words, contrary to human rights laws – even though there was no intent to discriminate against a religious minority. In another important decision, British Columbia (Public Service Employee Relations Commission) v. BCGSEU, the Supreme Court of Canada concluded that an aerobic fitness test for forest fire fighters resulted in gender-based discrimination because a disproportionate number of women failed the test.26 Although the exclusion was not absolute (some women passed and some men failed the test), the extent of the gender-based disparities was sufficient to allow the court to conclude that the test was discriminatory.27 Recognition of adverse effect discrimination marked an historic moment in equality rights jurisprudence. In adverse effect discrimination cases, the problem of discrimination is not located in an isolated individual perpetrator with chauvinistic, sexist, or racist attitudes; nor is it located in the life circumstances, or biological, cultural, or social characteristics of the person labeled different from the dominant norm – the individual who experiences the harms of exclusion and discrimination. Instead, discrimination is linked to institutional rules, policies, and processes. The norm itself becomes the source of the exclusion and harm that is discrimination. For example, the problem of exclusion from a building that is not equipped with a ramp for those in wheelchairs is not located in the individual with the disability, but in the failure to provide a ramp. If a ramp were provided, there would be no exclusion from the building for those in wheelchairs. The problem is a social one; it is not a “natural” or “biological” problem located in the individual who uses a wheelchair. The social construction of difference means that those who have been overrepresented in advantaged positions in various social institutions have shaped our understanding of what is normal and desirable. Despite the importance of the legal recognition of adverse effects discrimination, it is not always clear when it exists, what degree of statistical disparity substantiates a conclusion of adverse effects discrimination, or how the qualitative and quantitative dimensions of adverse effects discrimination are to be evaluated. Discrimination can often be understood either as direct or indirect, depending on how one characterizes a social problem or issue. Moreover, unintentional, effects-based discrimination may quickly become direct discrimination if institutional actors gain knowledge of the exclusionary effects of standards or policies and fail to consider whether these

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policies or standards could be revised or the individual or group accommodated. The Supreme Court of Canada has even suggested that one mechanism for reducing confusion between direct and adverse effect discrimination would be to eliminate the distinction and speak simply in terms of systemic discrimination.28 Rather than endorse the elimination of the analytical and legal distinction between direct and indirect discrimination, however, it would seem more promising to elaborate and clarify the distinction, while recognizing the potential for overlap and the impossibility of rigid categorizations. Otherwise, we risk returning to a narrower vision of discrimination that may fail to identify the adverse effects of seemingly neutral rules and policies. One way to clarify adverse effect discrimination is to distinguish between two types of adverse effects (see inset). First, a standard or rule that is neutral on its face and applied to everyone may have an absolute or statistically significant exclusionary effect on certain groups. In adverse effect discrimination cases implicating religion or disability, the effects of the discriminatory law or policy often affect all individuals with a similar disability or with similar religious beliefs. However, in cases involving race or gender, the unequal effects of an apparently neutral law or policy often create disproportionate, but not absolute, exclusion of members of a particular group.29 Second, adverse effect discrimination may occur when differential treatment is based on a categorization that disproportionately affects individuals from specific socially disadvantaged groups. For example, if domestic workers are excluded from labour standards regulation, the legislation on its face may not discriminate on the basis of race, gender, or national or ethnic origin. However, if we assess the gender, race, and national and ethnic origin of domestic workers, who are largely women who have migrated from developing countries, the discriminatory impact of the differential treatment of domestic workers is clear. Facially neutral categories, in this instance, may have disparate effects on groups traditionally protected in human rights laws. In addition to adverse effect discrimination, recognition of the institutional and dynamic character of inequality takes us on to the terrain of systemic discrimination.31 The legal concept of “systemic discrimination” emerged in the 1980s to describe discrimination that is pervasive, linked to structural inequalities, and institutionalized in

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Inclusive Equality

Facially Neutral Policy, Practice, Standard: An across-the-board standard that subjects everyone to the same rule, standard, test, practice, or policy. Its adverse effects may affect (a) all members of a group protected by human rights law (100 per cent exclusion or harm) (e.g., religion or disability) or (b) a disproportionate number of members of a group protected under human rights law. Facially Neutral Distinction or Categorization: Harmful differential treatment, categorization, or direct distinction that corresponds to a prohibited ground of discrimination in human rights law because of the preponderance of individuals from particular social groups affected by the facially neutral distinction or category (e.g. domestic workers, immigrant spouses).30 Both of these types of adverse effect discrimination are distinct from direct, group-based differential treatment.

social and organizational practices and procedures.32 Though sometimes considered synonymous with adverse effect discrimination, it is a broader concept that often results from both adverse effect discrimination (inequitable policies and practices) and direct discrimination (e.g. recurrent and pervasive harassment, overt exclusions and mistreatment) within a particular workplace environment, school, occupation, or profession. The problem does not stem from an isolated act of an aberrant individual or from a single policy or rule. It is a broader, dynamic, and institutionalized phenomenon perpetrated, sometimes unwittingly, by individuals who may even endorse the ideals of equality. It is often deeply embedded in social practices and institutional cultures. The Quebec Human Rights Tribunal described systemic discrimination as a “network of interrelated systemic practices” that include both direct and indirect discrimination, and result in “an array of complex factors and institutionalized practices that interact so as to produce a global exclusionary effect on members of protected groups.”33 The dynamics of systemic discrimination operate to entrench and perpetuate inequality. Exclusion reproduces itself as inequitable norms and standards become the unquestioned backdrop upon which anti-discrimination laws are required to function. What is so disconcerting about systemic discrimination is the ways in which it

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often imperceptibly reproduces, reinforces, and legitimizes inequality and exclusion. Inequitable opportunities, resources, and socioeconomic conditions result in unequal accomplishments, which then appear to justify the initial inequitable distribution of social goods. Accordingly, stereotypes and prejudices are perpetuated by the conditions of exclusion and inclusion, making social privileges and advantages seemingly fair. The complex interplay between intentional and unintentional discrimination means that unraveling the two is almost impossible. The idea of systemic inequality embraces both.34

r e m e dy i n g i n e q ua l i t y: ac c o m m o dat i o n versus transformation Legal recognition of the discriminatory adverse effects of seemingly neutral institutional policies, norms, and practices prompted a rethinking of remedies. There appeared to be two potential remedial responses. First, if a specific rule, policy, or practice produces adverse effects, one response is to abolish it and to replace it with a rule, policy or practice that does not have discriminatory adverse effects. Second, the policy, rule or practice could be retained and the individual accommodated through an exemption or special treatment to alleviate the adverse effects. The first remedial response is consistent with the social construction critique outlined above. It locates the problem of inequality in institutional structures, norms, and practices rather than in the individual or group labeled different, and it revises or eliminates the source of the problem. It is important that an assessment of the possibility of abolishing a discriminatory rule for everyone be the first response in fashioning a just and equitable remedy. Indeed, the current doctrinal framework for determining what constitutes a bona fide policy, rule, or practice contemplates such an inquiry. In the Meiorin case, involving the aerobic fitness test that disproportionately excluded female candidates, the Supreme Court held that the test could only be retained if the employer proved that it was a bona fide occupational requirement (BFOR).35 To do so, the employer was required to prove on a balance of probabilities that the standard was adopted “for a purpose rationally connected to the performance of the job … in an honest and good faith belief that it was necessary to the fulfilment of a legitimate work-related purpose,” and because it was considered “reasonably necessary to the

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Inclusive Equality

accomplishment of that legitimate work-related purpose.”36 These three inquiries suggest that a fairly probing analysis must be done to justify the validity of standards, rules or policies that cause adverse effects discrimination. In some cases, however, these three criteria are met and the revision of the policy, rule, or practice for everyone is not possible (e.g. abolishing a Saturday work rule). The second response to discrimination, therefore, is also important. It involves differential treatment to accommodate group-based differences while leaving the exclusionary institutional norms or rules in place. In the Simpsons-Sears case, the duty to accommodate was affirmed as an integral component of equality: the Supreme Court acknowledged that “a natural corollary to the recognition of a right must be the social acceptance of a general duty to respect and to act within reason to protect it.”37 Simpsons-Sears, therefore, had a “duty to accommodate” a store clerk who could not work on Saturday for religious reasons. In the Meiorin case, the Court incorporated the duty to accommodate the lesser aerobic capacity of the majority of women firefighters into the BFOR analysis as a final step.38 In elaborating the duty to accommodate, the Supreme Court has endorsed a two-pronged assessment, including “first, the procedure, if any, which was adopted to assess the issue of accommodation and, second, the substantive content of either a more accommodating standard which was offered or alternatively the employer’s reasons for not offering any such standard.”39 Though the duty is not absolute, the Court has been careful to insist that it is necessary to demonstrate that “it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.”40 In Central Alberta Dairy Pool, the Supreme Court enumerated factors that could be relevant to an assessment of this undue hardship standard to include “financial cost, disruption of a collective agreement, problems of morale of other employees, interchangeability of work force and facilities,” as well as the size of the employer’s operation, and the magnitude of any safety risks posed.41 Of significance in the Meiorin case was the proactive and preventive tenor of the Court’s judgment, which emphasized the need to “build conceptions of equality into workplace standards”42 at the outset rather than in the wake of a human rights complaint. In another important decision, Canadian Council of Persons with Disabilities v. VIA Rail,43 the Supreme Court again emphasized the

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importance of preventing discrimination. The Court also insisted on a high standard for assessing claims of undue hardship, explaining that the “point of undue hardship is reached when reasonable means of accommodation are exhausted and only unreasonable or impracticable options for accommodation remain.”44 In the case, VIA Rail paid close to 30 million dollars to purchase over 130 new railway cars which were not accessible to persons using wheelchairs. VIA maintained that it would transfer passengers onto on-board wheelchairs and provide personal assistance for services such as washroom use. The Court concluded that VIA Rail had failed to comply with its human rights obligations under Canadian transport laws. As Justice Abella noted: The twin goals of preventing and remedying discrimination … cannot be accomplished if the creation of new, exclusionary barriers can be defended on the basis that they are no more discriminatory than what they are replacing. This is an approach that serves to perpetuate and exacerbate the historic disadvantage endured by persons with disabilities. … [W]hile human rights principles include an acknowledgment that not every barrier can be eliminated, they also include a duty to prevent new ones, or at least, not knowingly to perpetuate old ones where preventable.45 Thus, the Court agreed that the procedural and substantive dimensions of the duty to accommodate require that societal decisionmakers act in accordance with our current understanding of the realities of inequality to prevent the further entrenchment of historical patterns of exclusion and discrimination.46 Whereas the emergence of the duty to accommodate was widely seen as an essential step to securing the inclusion of individuals from historically disadvantaged groups in the institutions and public spaces of society, it has also been critiqued for its underlying assumptions. For example, Gwen Brodsky and Shelagh Day maintain that the individual accommodation approach contains an assimilationist bias for it “allows those who consider themselves ‘normal’ to continue to construct institutions and relations in their image, as long as others, when they challenge this construction are ‘accommodated.’”47 They argue that “accommodation seems to mean that we do not change procedures or services; we simply “accommodate”

26

Inclusive Equality

those who do not quite fit. We make some concessions to those who are “different,” rather than abandoning the idea of “normal” and working for genuine inclusiveness.”48 In other words, the legal duty to accommodate in anti-discrimination law tends to focus on individual accommodation rather than institutional change, thus implicitly affirming the continued hegemony of dominant norms. An accommodation approach relegates those requiring accommodation to the margins of social relations, characterizing their needs as exceptional and differentiating them from dominant groups for needing special treatment. In a similar vein, Joan Williams and Nancy Segal maintain that challenging traditionally male workplace norms is integral to gender equality: It is possible to design workplaces that reflect not only the bodies and traditional life patterns of men, but also those of people (disproportionately women) who need time off for childbearing, childrearing, and other family caregiving. Designing workplace objectives around an ideal worker who has a man’s body and men’s traditional immunity from family caregiving discriminates against women. Eliminating that ideal is not “accommodation”: it is the minimum requirement for gender equality.49 For Williams and Segel, a discourse of “accommodation” is critiqued in ways that parallel the Brodsky and Day critique. Equality is not about providing special treatment (or accommodation) to historically underrepresented groups; it is about changing institutional norms and practices to ensure that they resonate with the needs, concerns, and interests of everyone. It is interesting to note that the Supreme Court of Canada has acknowledged the risks of a narrow approach to the duty to accommodate. Drawing on the insights of Brodsky and Day, Chief Justice McLachlin noted in the Meiorin case that the right to inclusion and equality should not be “reduced to a question of whether the ‘mainstream’ can afford to confer proper treatment on those adversely affected, within the confines of its existing formal standard.”50 She went on to explain that if accommodation within the framework of the institutional status quo imposes undue hardship, then “the edifice of systemic discrimination receives the law’s approval.”51 Thus,

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she hints at a more expansive and transformative understanding of the duty to accommodate. While a rejection of the terminology of “accommodation” may be necessary in some contexts, in other contexts, accommodation of those who are different from the dominant and majority groups in society continues to be of critical importance (i.e. for religious minorities and persons with disabilities). Accommodating those who have been historically and disproportionately excluded is often critical to insuring their inclusion in societal institutions and opportunities. A more transformative approach, which involves changing or eliminating exclusionary policies, rules, practices, or standards, is also much more likely to emerge once a critical mass of those historically excluded gains access to an institution. Thus, there is a growing consensus that institutional change and a revision of dominant norms are essential to more transformative approaches to equality. Another context where these questions are critical is in the development and design of affirmative action or equity initiatives.

equity initiatives and preventive a p p roac h e s The first wave of equality rights laws in the 1960s sought to eradicate individual discriminatory treatment and exclusion of individuals linked to negative stereotypes and attitudes about specific groups in society. Individuals were to be treated as individuals based on their individual capacities, needs, and merits, not treated in particular ways because of their membership in specific group(s). Underlying this first legal wave of equality rights regulation, however, was a presumption that the equal treatment of all individuals would suffice to secure social equality. Group identities were to be disregarded. This approach evolved as group-based differences began to be recognized as a legitimate basis for remedial initiatives. For example, the emergence of proactive equity initiatives was premised on acceptance of the need to use group-based categories. In the United States, in 1965 (shortly after the historic Civil Rights legislation of 1964), President Johnson issued Executive Order 11246, requiring all federal contractors to take affirmative action measures to ensure fair hiring and treatment of all employees and potential employees regardless of

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Inclusive Equality

race, colour, religion, or national origin. This initative was extended to include gender in 1967.52 By the 1970s, equality-conscious judges in the US emphasized the need “to take race into account in fighting racism.”53 In Canada, growing societal appreciation of the institutionalized dimensions of discrimination and recognition of the inadequacy of the individual complaint process through courts and tribunals prompted the emergence of new proactive regulatory initiatives in the 1980s. The federal Employment Equity Act,54 which came into effect in 1986, mandated the development of employment equity programs within federally regulated workplaces. It requires federally regulated employers to review workplace policies and practices to identify systemic barriers and to set up proactive initiatives to promote equality for four designated groups: women, Aboriginal peoples, persons with disabilities, and members of visible minorities (defined as persons who are non-Caucasian in race or non-white in colour). These four groups were selected because they had been historically excluded, mistreated, and denied opportunities in the workplace. A federal contract compliance program was also brought into effect at the same time.55 Provincial legislatures have also introduced employment equity laws, limiting them in most cases to public sector employment.56 Proactive group-based remedial programs were therefore considered necessary to redress historical patterns of exclusion and discrimination. These initiatives had been recommended in the influential 1984 Report of the Royal Commission on Equality in Employment as necessary responses to the growing acknowledgement that problems of inequality are systemic and not simply individual in nature. As explained by Judge Rosalie Silberman Abella at the outset of her Report: “Systemic discrimination requires systemic remedies. Rather than approaching discrimination from the perspective of the single perpetrator and the single victim, the systemic approach acknowledges that by and large the systems and practices we customarily and often unwittingly adopt may have an unjustifiably negative effect on certain groups in society.”57 The term “employment equity” was devised by Justice Abella.58 Given the extensive backlash in the US regarding the meaning and scope of affirmative action, as well as the tendency to limit the definition of affirmative action to group-based preferential treatment and quotas, Justice Abella sought a new term to convey the need for

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an expansive range of proactive and systemic responses to inequality at work. The idea of “equity” suggests a commitment to going beyond procedural or formal equality to secure a more outcomeoriented substantive equality at work. The Report defined employment equity as comprehensive planning processes “for eliminating systemically induced inequities and redressing historic patterns of employment disadvantage suffered by members of target groups.”59 The stated purpose of the federal employment equity legislation reflected Abella’s conception of substantive equality, emphasizing that employment equity “means more than treating persons in the same way but also requires special measures and the accommodation of differences.”60 Pay equity laws, introduced in some provinces, provide another example of a shift to proactive regulatory initiatives aimed at institutions and systems rather than the retroactive regulation of individual discriminatory acts.61 Pay equity secures gender-based equal pay for work of equal value, evaluated in terms of skill, effort, responsibility, and working conditions. As in the case of employment equity, pay equity requires employers to review remuneration practices and polices proactively to identify and remedy gender-based inequities. Rather than reacting to individual complaints of pay inequity, employers are given the responsibility of remedying systemic inequities even in the absence of human rights complaints. Similarly, initiatives in the domain of disability rights have included proactive obligations to ensure accessibility and the removal of unnecessary barriers to inclusion for persons with disabilities.62 Proactive policy (rather than legislative) initiatives have also occurred in the educational domain. Universities and colleges have developed special programs to facilitate access by certain underrepresented groups, particularly Aboriginal Canadians. These initiatives are generally considered to be consistent with the purposes of human rights legislation. Special exemption clauses in human rights legislation, however, have also been relied upon in the past to sustain these initiatives in the face of legal challenges of discrimination by individuals from historically privileged social groups.63 Proactive equity initiatives represent a fundamental shift away from the individual complaint approach to equality rights regulation. They constitute a more indirect form of state regulation, engaging private actors in state-defined social objectives.64 Premised on the “dispersed, pluralistic nature of effective social control,”65

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these regulatory strategies displace the notion that state-based legal processes are the only arena of rights enforcement. Still, these proactive and systemic initiatives are overseen by the administrative apparatus of the state. Though the state’s role in ensuring compliance has been critiqued for its ineffectiveness and inadequacy, in each case the legislation includes reporting obligations to human rights commissions, pay equity commissions or tribunals, complaints procedures for non-compliance, and judicial review mechanisms.66 As approaches to regulation evolved, important conceptual challenges relating to the underlying assumptions and objectives of antidiscrimination law also emerged. To the extent that group-based differential treatment is seen as a necessary component of equality of outcomes, when is such treatment justified and is it ever a source of discrimination against individuals who are not members of an historically disadvantaged group – what some have labeled “reverse discrimination”? Though Canada has not been immune to backlash and political discourses against affirmative action,67 it is important to underscore the extent to which both educational and employment equity initiatives in Canada have developed in a legal context that affirms their legality as well as beneficial effects in redressing societal inequalities. Of particular significance in the Canadian context is the explicit endorsement of affirmative action measures in both constitutional and statutory equality rights guarantees.68 In the statutory domain, the Supreme Court of Canada also endorsed affirmative action remedies in a pathbreaking systemic discrimination case implicating genderbased discrimination by a railway company. The Court emphasized that employment equity programs are “designed to break a continuing cycle of systemic discrimination.”69 Chief Justice Dickson outlined three ways in which employment equity facilitates equality at work. First, it counters “the cumulative effects of systemic discrimination.” Second, it addresses discriminatory attitudes by “placing members of the group that had previously been excluded into the heart of the workplace and by allowing them to prove ability on the job.” Finally, an employment equity program “helps to create what has been termed a ‘critical mass’ of the previously excluded group in the work place. This ‘critical mass’ has important effects. The presence of a significant number of individuals from the targeted group eliminates the problems of ‘ tokenism’”70 Dickson also adds

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that the “critical mass” assists in remedying “systemic inequities in the process of hiring.”71 Importantly, according to the Court, the critical mass makes possible “continuing self-correction of the system,” a process consistent with a more transformative vision of equality. The Court’s general emphasis on redressing systemic inequalities is central to an approach that demands more fundamental institutional change to eliminate historical sources of exclusion. More recently, the Supreme Court of Canada has reaffirmed its understanding of the role of anti-discrimination protections in the workplace. Chief Justice McLachlin cautioned, “Interpreting human rights legislation primarily in terms of formal equality undermines its promise of substantive equality and prevents consideration of the effects of systemic discrimination.”72 It is critical, according to the Court, to ensure that policies, standards, and practices that have discriminatory employment effects be carefully scrutinized and revised whenever possible to secure equality.

complex identities and legal categories This whole idea of double discrimination, that is, race and gender, just does not work. I mean look at me. I do not separate that way. My race and my gender are all in one package. My race does not come apart from my woman … Once it is understood that I do not come apart, the entire discussion of “double” discrimination must be understood to fail. I cannot trace the discrimination I live to one source – race or gender. It is better described as “discrimination within discrimination.” It is complex and certainly not linear.73 An integral part of acknowledging the systemic dimensions of inequality is an appreciation of the need to provide legal recognition to group-based identities while being attentive to the complexities and challenges of doing so. Early equality rights protection responded to group-based experiences of discrimination in social contexts where the individual’s affiliation to a specific group was seemingly readily identifiable.74 Though human rights protections were initially presumed to track relatively specific group-based categories and grounds, it has become increasingly apparent that

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discriminatory practices and realities often defy such simple categorization.75 The enumeration of prohibited grounds of discrimination in anti-discrimination laws and constitutional documents has reinforced a “categorical” approach to human rights protection that often fails to capture the lived reality of membership in multiple groups or self-identification in terms not contemplated by the law.76 Anti-discrimination law tends to require individuals to prove how the discrimination experienced corresponds to a particular ground or grounds of discrimination. It encourages individuals to isolate and highlight one aspect of their identity as the explanation for the discriminatory treatment. Concerns about the inability of legal categories to track complex, overlapping, and multiple social identities have also arisen in the constitutional context and are examined further in chapter 2. They have also had an impact on statutory developments in anti-discrimination law. Kimberlé Crenshaw’s concept of “intersectionality”77 highlights the need to understand multiple and overlapping discrimination in ways that go beyond a simple quantitative addition of discrimination on the basis of more than one ground (e.g., sex discrimination plus race discrimination). Rather, intersectionality conveys the idea that the discrimination faced by women of colour, for example, is qualitatively rather than simply quantitatively different. Focusing on black women in the United States, Crenshaw critiques the extent to which “the paradigm of sex discrimination tends to be based on the experiences of white women; the model of race discrimination tends to be based on the experiences of the most privileged Blacks.”78 The categories of anti-discrimination law, therefore, do not adequately respond to the realities of inequality in black women’s lives. Thus, Crenshaw seeks to “demarginalize the intersection of race and sex” to bring racialized women into the centre of anti-discrimination law. Scholars in Canada have reached similar conclusions. Nitya Iyer, for example, examines Crenshaw’s thesis in the Canadian human rights context and identifies a number of cases where human rights tribunals tended to isolate one aspect of a claimant’s identity rather than acknowledge more complex and intersecting identities.79 Iyer points to cases such as Alexander v. British Columbia80 to illustrate the single category tendencies of anti-discrimination law: Isabel Alexander is a First Nations woman who is partially blind and has a motor impairment affecting her gait and speech. She

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was refused service in a liquor store because the male store manager thought she was drunk. He refused to believe Alexander’s explanations of her condition and called the police. … Alexander alleged discrimination on the basis of race, colour, ancestry, and/ or physical disability. … [T]he tribunal … asserted that the cause of the discrimination was her disability. The allegations of discrimination on the basis of her race, colour and ancestry were summarily rejected.81 Although the refusal to address the overlapping types of discrimination did not leave Ms. Alexander without a remedy, in some cases the failure to appreciate intersectionality may result in an individual being denied protection pursuant to human rights law. The legal implications of a more complex and intersectional account of group identities remain to be fully theorized.82 The Supreme Court’s jurisprudence reflects an acceptance of the theoretical possibility of intersectional, overlapping, and compound identities; however, its concrete application is rare. The Court has acknowledged that “categories of discrimination cannot be reduced to watertight compartments, but rather will often overlap in significant measure.”83 Similarly, individuals may base a claim of discrimination on a “confluence of grounds” or an “intersection of grounds.”84 How a court frames its understanding of the discrimination issues is critical to the outcome of a case, including the extent to which the intersectional, overlapping, or compound experience of inequality is recognized. Another challenge to anti-discrimination law is the disjuncture between, on the one hand, the historic patterns and continuing realities of group-based inequalities and, on the other, the symmetry of the legal categories of discrimination enumerated in Canadian human rights documents. The language of human rights documents extends symmetrical protection to men and women, for example, pursuant to the prohibition on sex discrimination. Similarly, prohibitions on race-based discrimination protect individuals from minority as well as majority races. Yet, despite this formal protection, legal prohibitions against sex discrimination and race discrimination emerged to respond to a social and historical problem of inequality against women and persons of colour. Anti-discrimination law relies on an analysis of grounds of discrimination enumerated for the most part in ways that obscure the historical and continuing realities of inequality facing the subordinated group or groups within each

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ground. It is only in the case of disability that one finds an asymmetrical, more contextual, and historicized articulation of the protection. Developing such an approach with respect to the other grounds is critical when issues arise, such as employment equity or special programs to redress group-based disadvantages. Thus, discrimination law raises complex questions about the identity of individuals as members of groups. It touches fundamentally upon how individuals are categorized as “other” and demeaned, excluded, and harmed as a result. Socially disadvantaged groups are labelled “different” from the perspective of an unstated dominant norm. Discrimination law also raises questions about whether it is possible to be categorized as “other” and still be affirmed, appreciated, and treated as an equal. Is the process of categorization antithetical to the recognition of our shared humanity? And what about the important processes of claiming one’s identity in opposition to dominant groups in society, through which one resists assimilation? In claiming identity, what are the risks of essentialism85 – that is, reducing groups to congealed caricatures that constrain individual lives? These complex questions are fundamental to our broader understanding of how the grounds of discrimination speak to groupbased identifications and affiliations. They are critical to the larger project of substantive equality law, with all of its contradictory efforts to recognize and suppress the relevance of group identities.

r e l at i o n a l d i m e n s i o n s o f i n e q ua l i t y A common thread runs through the challenges of, first, recognizing the systemic realities of discrimination and, second, acknowledging the complexity of social identity. When woven together, these two conceptual challenges to equality rights regulation produce the relational fabric of social exclusion and inclusion. Ranging from individual relations of prejudice to institutionalized practices, policies, and relationships, inequality occurs in a relational context. Thus, to understand the dynamics of inequality, it is critical to understand the social and institutional relationships that reproduce it and provide for its ideological justifications. Systemic discrimination addresses not simply the static state of inequality but the dynamics of its reproduction. While the concrete effects of inequality must be named and documented at particular

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moments in history, the relational dynamics of its reproduction over time must also be identified. To develop strategies that will break the systemic cycles of inequality, it is therefore essential to explore not only the specific conditions or effects of inequality, but also how inequality, exclusion, discrimination, and the primacy of dominant norms reproduce themselves in the social and institutional relations of everyday life. Jennifer Nedelsky notes that “what rights in fact do and have always done is construct relationships – of power, of responsibility, of trust, of obligation.”86 Martha Minow suggests that rights can be understood as “the articulated legal consequences of particular patterns of human and institutional relationships.”87 In the domain of equality rights, the recognition of systemic discrimination reinforces the idea that it is critical to examine what types of institutional and social relations reproduce patterns of inequality and exclusion. Similarly, group-based identities are premised on the relational matrix upon which individuals are situated. Achieving equality requires a transformation of the human relations that entrench and reproduce both inequality and the continued privileging of historically dominant individuals and groups. One of the most persistent sources of inequality has been our inability to relate across differences as equals. Equality is associated with sameness and inequality with difference. This assumption has often informed legal understandings of equality and discrimination. As Minow explains: For there to be an assignment of deviancy, it must be from the vantage point of some claimed normality; for there to be a position of inequality, there must be a contrasting position, not of equality, but of superiority. In short, the idea of difference depends on the establishment of a relationship between the one assigned the label of “different” and the one used as the counterexample.88 Inequality occurs through a process of socially constructing differences in terms of a hierarchy of superiority and inferiority. Tangible denials and serious injustices are implicated in the hierarchical ordering of human differences. These inequities, moreover, are reinforced by ideologies that tell us that the characteristics of the dominant groups in society are “normal” and superior. Equality demands that we break the

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equation of inequality with difference. Equality should celebrate and nurture differences and diversity. Intimately related to the ideological nature of definitions of normalcy and deviance is the need to examine the actual way in which people relate across their differences and the social structuring of those relations.

2 Constitutional Equality: Challenges and Possibilities [The protection of equality] expresses a commitment deeply engrained in our social, political and legal culture to the equal worth and dignity of all persons … Secondly, it instantiates a desire to rectify and prevent discrimination against particular groups suffering social, political and legal disadvantage in our society. Mr Justice La Forest1

The inclusion of equality rights in the Canadian constitution in the early 1980s ushered in a new era of government accountability for its choices about inclusion and exclusion.2 Equality became both a constitutional norm and a symbol of a commitment to an inclusive society. Key developments included the opening up of civil marriage to same-sex couples, acceptance of symbols of religious diversity in public spaces, growing acknowledgment of systemic inequalities, and recognition of the importance of accommodating the needs of persons with disabilities.3 While there had been some recognition of equality in 1960 in the quasi-constitutional Canadian Bill of Rights,4 and in the application of legal concepts like the rule of law,5 the formal entrenchment of constitutional equality rights in s. 15 of the Charter represented an important moment in Canadian legal history. Equality was no longer just a statutory right subject to legislative amendment and enforced through the administrative apparatus of human rights commissions and tribunals. Rather, it was a constitutional right, relevant to all areas of law and government policy. In the wake of the constitutionalization of equality rights, courts were faced with the task of articulating a doctrinal framework for adjudicating equality claims. In doing so, they emphasized the importance of substantive equality informed by a purposive and

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contextual interpretive approach. Yet the constitutional domain, which implicates the public choices and regulatory policies of governments, presented significant challenges to judges. Shifting and divergent understandings of the roles, responsibilities, and limits of the modern regulatory state rendered the interpretation and application of constitutional equality rights unpredictable and complex. Moreover, the novelty of constitutional recognition of group-based rights within a legal tradition steeped in an ethos of individual rights posed fundamental questions and concerns. When is it constitutional to treat groups differently and when does differential treatment, or its effects, violate equality rights? The purposive and contextual approach endorsed by the courts did not appear to provide determinative and predictable answers to these questions.

constitutional change: from formal to s u b s ta n t i v e e q ua l i t y Articulation of the concept of substantive equality was central to emerging legal thinking about the meaning of equality. Formal equality, or a vision of equality premised solely on equal treatment of individuals, was rejected in favour of a substantive conception of equality – a concept that recognized diversity and the need to treat groups differently in some contexts to secure equal outcomes. The first significant constitutional equality rights case to be decided by the Supreme Court of Canada, Andrews v. Law Society of British Columbia,6 arrived at the Court in the late 1980s, shortly after the Court’s conceptual recognition of adverse and systemic discrimination in the statutory domain. Justice McIntyre, who had written the decisions in the path-breaking adverse effects cases in interpreting anti-discrimination legislation, also drafted the reasons for the Court on the constitutional meaning of s. 15(1).7 In so doing, he infused the constitutional guarantees with statutory understandings of discrimination, establishing constitutional protection against both direct and adverse effect discrimination. Judicial recognition of adverse effect discrimination in the constitutional domain meant a rejection of the paradigm of formal equality. For the government to treat everyone the same would not suffice in the face of adverse and discriminatory effects. As Justice McIntyre explained, “It must be recognized at once … that every difference in treatment between individuals under the law will not necessarily result

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in inequality and, as well, that identical treatment may frequently produce serious inequality.”8 In addition to rejecting a sameness-of-treatment definition of equality, McIntyre J. expressly rejected the potentially tautological “similarly situated” formula for assessing constitutional equality – a formula requiring that all those similarly situated be treated alike.9 Instead, he endorsed what was subsequently called substantive equality – a conception of constitutional equality based on the discriminatory effects and outcomes of laws and social policies. A substantive definition of equality meant that judges could not rely on the simple procedural rule of equal treatment, which had been the starting point of formal equality. It was no longer possible to assume that differential treatment constituted discrimination and that sameness of treatment constituted equality. Instead, discrimination had to be assessed in terms of the harmful or disadvantaging effects of laws and policies. As McIntyre J. explained, discrimination entails the imposition of inequitable burdens, obligations, and disadvantages, or the denial of access to opportunities, benefits, and advantages based on group membership.10 The Supreme Court grappled with the elaboration of a doctrinal framework for constitutional equality in the wake of the Andrews decision, producing a number of fractured judgments and divergent approaches.11 Consensus emerged in 1999 when a unanimous Court agreed on the appropriate doctrinal test for assessing constitutional equality.12 In Law v. Canada (Minister of Employment and Immigration), the Supreme Court proposed a legal framework for assessing violations of substantive equality which required that a law or policy: (i) result in differential treatment or effects, (ii) be based on enumerated or analogous ground(s) of discrimination, and (iii) constitute discrimination in the “substantive sense,” measured in relation to the purposes to be advanced by the protection of constitutional equality.13 In the fall of 2008, in R. v. Kapp, the Supreme Court again revisited the doctrinal framework for equality and set out a a two-part test inspired by the earlier Andrews case: “(1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?”14 Both the two part and the three part tests articulated by the Court recognize that discrimination sometimes occurs in the wake of group-based differential treatment and sometimes results from the

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inequitable effects of similar treatment in a world of real social and economic group-based differences. Thus, as noted in the Law case, “Differential treatment, in a substantive sense, can be brought about either by a formal legislative distinction, or by a failure to take into account underlying differences between individuals in society.”15 In both the statutory and constitutional domains, the legal definition of equality goes beyond sameness in treatment to require an assessment of the purposes and effects of laws, policies, and programs. As a result, a formal process-based rule no longer sufficed and new interpretive strategies were needed to assess which effects were discriminatory. Most significantly, a growing consensus emerged that a substantive approach to equality rights required legal rights and remedies to be interpreted in light of their larger purposes and the specific social, economic, and institutional contexts in which they arose. The key purposes articulated by the Court included the redressing of historical social disadvantage and respect for human dignity. The first was derived from the historical realities of inequality and discrimination in Canadian society. The focus was on the need to redress the exclusion, stereotyping, prejudice, and mistreatment of specific social groups including, for example, racialized communities, women, religious minorities, gays and lesbians, persons with disabilities, and Aboriginal people. The second purpose framed equality rights in terms of the individualistic and abstract ideal of respect for human dignity. The two purposes are linked, since the stereotyping, exclusion, prejudice, and mistreatment of individuals because of their membership in historically disadvantaged groups undermines human dignity. Moreover, since discrimination is a legal concept that is rooted in group-based realities, it is necessarily premised on experiences that connect individuals to their group-based identities. Despite this connection, there has been an unresolved tension between the two purposes. In the Andrews case, the importance of redressing group-based and historical disadvantages was emphasized. In Law, human dignity was endorsed as the central purpose of constitutional equality (in addition to consideration of the context of group-based disadvantages). More recently in Kapp, the Court has returned to the Andrews focus and suggested that human dignity is too nebulous to remain the central determinant of equality.16 In its early interpretations, the Supreme Court tended to emphasize redressing the historical disadvantage faced by specific social groups in Canadian society as the underlying purpose of the equality guarantee. In Andrews, for example, the Supreme Court concluded

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that the scope of protection of s. 15 extended only to groups protected by the explicitly enumerated grounds of discrimination and grounds that were analogous to them. The Court clarified the following criteria for deciding if a new ground of discrimination should be accorded constitutional protection: did the group constitute a “discrete and insular minority,” and had the group experienced historical exclusion, social disadvantage, prejudice, and stereotyping?17 These criteria evoke a conception of equality rights grounded in the fundamental purpose of redressing the historical exclusions and mistreatment of individuals from socially disadvantaged groups. Conceptually, however, the enumerated and analogous groundsbased approach contains an internal contradiction. Structurally and linguistically, as in the case of statutory protections, the Charter equality guarantees accord symmetrical protection to both privileged and socially disadvantaged groups. Except with respect to the grounds of physical and mental disability, constitutional protection is framed without reference to historical patterns of social disadvantaging. Thus, for example, many of the early claims of sex discrimination were brought by men challenging legislative provisions designed to provide special protection to women.18 The wording of the equality guarantees reflects the influence of an individual rights orientation and legal formalism, with its apparently neutral legal categories. However the underlying logic of substantive equality is deeply challenged when members of historically privileged groups, who appear to be protected by the formal terms of the groundsbased non-discrimination provisions, allege discrimination. The purposive dimensions of substantive equality address, in part, this internal ambiguity. In some cases judges have even endorsed asymmetrical understandings of constitutional equality. Justice Wilson, for example, described the purpose of constitutional equality as primarily directed at “remedying or preventing discrimination against groups suffering social, political and legal disadvantage in our society.”19 To ascertain whether or not the equality guarantees have been violated, Wilson J. emphasized the importance of examining a particular law or policy within its larger historical and social context. Discrimination law was not simply concerned with remedying or identifying arbitrary mistreatment of individuals or inaccurate legal categorizations: it was about redressing the prejudices, exclusions, and harms experienced by certain socially disadvantaged groups in Canada. In one case, the Supreme Court noted that in assessing questions of discrimination, the “effects of a law as they

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relate to the important purpose of s. 15(1) in protecting individuals or groups who are vulnerable, disadvantaged, or members of ‘discrete and insular minorities’ should always be a central consideration.”20 The emergence of human dignity as a fundamental purpose of equality contributed to the uncertainty because it tended to reinforce an individualistic approach to equality rights claims, one that was potentially in tension with the more group-based dimensions of antidiscrimination law. In a number of cases the Court emphasized that substantive equality is intimately linked to respect for the basic “equal worth and human dignity of all persons.”21 As the Court outlined in Law: It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.22 By emphasizing human dignity, particularly in the constitutional context, judges sought to elucidate the specific meaning of substantive equality and delineate the harm of discrimination. In the Charter context, however, this inquiry is often complex, particularly when a case involves differential entitlements to government benefits, or where the government has targeted particularly needy communities to the detriment of less needy groups. Ironically, although human dignity was seemingly emphasized by the Court to underscore our collective commitment to the importance of equality as a fundamental human right, taking it into account raised the threshold for equality rights violations. In case after case, equality claimants began to lose.23 The nature of the harm they experienced was not considered sufficiently severe to meet the human dignity violation standard. Though perhaps used as an excuse to deny claims that judges were not inclined to accept for a range of reasons, human dignity became an amorphous barrier to success in equality cases. As a result, despite widespread consensus about the general importance of human dignity, there was growing concern that using this concept as a touchstone for discrimination in the substantive sense

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had inadvertently created difficult obstacles for equality claimants. Indeed, in its more recent judgments, the Supreme Court has rejected the wisdom of focusing on human dignity, given its malleable and uncertain implications.24 In addition to insisting on a purposive approach to constitutional equality, a contextual approach has also been articulated. Equality rights are to be understood in the complex and myriad contexts in which they arise, taking into account concrete social, economic, and political realities. To assist in ascertaining whether discrimination has occurred in the substantive sense, the Law decision enumerated a non-exhaustive list of contextual factors, including: 1 Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue. 2 The correspondence, or lack thereof, between the ground or grounds upon which the claim is based and the actual need, capacity, or circumstances of the claimant and others. 3 The ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society. 4 The nature and scope of the interest affected by the impugned law.25 These contextual factors are aimed at assisting judges in deciding when differential treatment or disparate effects (resulting from a neutral law or policy) are discriminatory and when they are consistent with equality because they respond to group-based needs and social realities. The importance of historical, group-based disadvantage emerges as a recurrent theme in the first and third factors. Indeed, the third factor was initially interpreted to replicate the role of s. 15(2) to protect proactive ameliorative government initiatives from constitutional challenges by socially advantaged individuals and groups. The second factor, though linked to the idea that equality should not be interpreted to require sameness of treatment, has, ironically, been applied in some cases to reintroduce a similarlysituated analysis.26 Differences between groups are used as a justification for differential treatment, when the ameliorative effects of such treatment are deeply contested. The last factor is concerned with the nature and the extent of the interests at stake. While these contextual factors appear helpful, the way they have been used to clarify the fundamental purposes animating the constitutional

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protection of equality has been unpredictable and problematic. Despite repeated efforts to articulate the legal meaning of equality, uncertainties and complexity persist.

e q ua l i t y as a c o m pa r at i v e c o n c e p t One important source of confusion in constitutional equality jurisprudence has been the question of how to understand and apply equality as a comparative concept. In his important and widely acclaimed decision in Andrews v. Law Society of British Columbia, Justice McIntyre began by noting that equality is “a comparative concept, the condition of which may only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises.”27 Unlike other fundamental rights or freedoms, violations of constitutional equality rights are integrally connected to relative rather than absolute harms.28 In Andrews, Justice McIntyre also drew on the important history of human rights legislation across Canada that identified specific groups for protection against discrimination in employment, housing, and access to services. Developing a purposive analysis, Justice McIntyre reasoned that section 15 of the Charter should not apply to all legislative distinctions made by governments. Instead, he maintained, and a majority of the justices agreed, that it should be limited to protecting groups historically affected by inequality based on the enumerated grounds of discrimination. Recognition of additional protections should respect the underlying purposes of section 15 – any new grounds should be analogous to the enumerated ones, assessed with respect to factors such as whether the group has experienced historical disadvantage, prejudice, and stereotyping, whether it is a “discrete and insular minority,” whether its identity is immutable or constructively immutable, and whether it resonates with other protected grounds of discrimination (in human rights legislation, for example).29 Recent jurisprudence, however, reveals that judges are having difficulty applying the comparative dimensions of constitutional equality. Attesting to the continuing power of legal formalism, equality claims have been denied because of an unduly narrow interpretation of the appropriate comparator group – reminiscent of the equality rights jurisprudence under the Canadian Bill of Rights.30 In one of the most widely critiqued decisions of that earlier era, Bliss v. Canada (AttorneyGeneral) (1979), the more onerous qualification requirements for

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pregnant women under the former unemployment insurance scheme were held not to be sex discrimination because, according to the Court, they differentiated between pregnant and non-pregnant persons – not women and men.31 The reasoning in Bliss was critiqued and explicitly overruled in Brooks v. Canada Safeway.32 Yet, modern cases on constitutional equality have fallen into the same traps of legal formalism. Rather than understanding the comparator group concept in broad terms, it has become a technical exercise that risks undermining the validity of a claim at the outset. Just as the pregnant versus non-pregnant characterization of the equality issue in Bliss meant that the Court could not appreciate the deeply gendered dimensions of the less favourable treatment of pregnant women, a narrow formulation of the comparator group in s. 15 cases has generated similar outcomes. For example, in Auton (Guardian ad litem of) v. British Columbia (Attorney General) in 2004,33 the issue was whether the government should pay for a new and emerging therapy for autistic children. Rather than understanding the comparator group in relation to the fundamental issues of disability rights and young children, the Court maintained that the appropriate comparator group was “a nondisabled person or a person suffering a disability other than a mental disability (here autism) seeking or receiving funding for a non-core therapy important for his or her present and future health, which is emergent and only recently becoming recognized as medically required.”34 Just as the pregnant versus non-pregnant comparison in Bliss was problematic, so is this complicated and lengthy formulation of the comparator group. The issue in Auton was discrimination against children with autism, framed in terms of disability rights. That is all that is needed in terms of the comparative dimensions of inequality to develop a coherent and equitable analysis of the discrimination claim in the case. The most developed justification of this narrowing of the comparator group analysis can be found in Justice Binnie’s reasons in Hodge v. Canada (Minister of Human Resources Development) in 2004,35 a case involving a constitutional challenge to the eligibility requirements of survivor pension benefits. Betty Hodge had lived in a common law relationship with the deceased for approximately twenty years but, two years prior to his death, had permanently left him because of allegations of physical and psychological abuse. The legislative provisions on survivor benefits require that common law

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spouses be cohabiting at the time of the death of their spouse and during a one-year period prior to death. Thus Betty Hodge fell through the cracks of the legislative provisions, which recognized to a significant degree the ways in which economic and social dependencies of common law relationships parallel marriage. Although successful at the Tribunal level and at the Federal Court of Appeal in substantiating her claim based on marital status, Justice Binnie denied Hodge’s claim, primarily because of the way in which he framed the comparator group analysis. According to Binnie J., the relevant comparator group was divorced women, not separated married women, as the common law relationship had ended. Since divorced women were not entitled to survivor benefits, there was no discrimination in denying benefits to a former common law spouse. For him, the “appropriate comparator group is the one which mirrors the characteristics of the claimant (or claimant group) relevant to the benefit or advantage sought except that the statutory definition includes a personal characteristic that is offensive to the Charter or omits a personal characteristic in a way that is offensive to the Charter.”36 As Dianne Pothier has noted, “the ‘mirror’ image indicates that the Court is looking for direct parallels, thus obscuring different needs and circumstances that must be taken into account to achieve substantive equality.”37 In Hodge, long term common law spouses have no equivalent to the matrimonial property distribution laws to ensure equitable sharing of assets and property upon termination of their relationship. Thus, it would make more sense to compare separated common law spouses to separated but not divorced married couples. The problem in these cases is not with the general idea that equality is a comparative concept. Rather, it lies in the failure of the court to connect individual instances of alleged discrimination to larger patterns of social exclusion and discrimination – patterns that are rooted in a group-based or grounds-based analysis. Even when discrimination claims are based on concerns about under inclusiveness, equality analysis should not be narrowed to a competition between socially disadvantaged groups. The analysis of the exclusion should remain rooted in the larger comparative dimensions of inequality.

constitutional recognition of groups A further source of uncertainty that continues to infuse constitutional issues on equality is the extent to which collective rights and

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identity politics should be embraced by constitutional doctrines of equality. Constitutional recognition of the importance of diverse group-based identities is integral to a substantive conception of equality. Whereas formal equality asserts that social and legal policy is premised on an undifferentiated individual citizen norm, substantive equality engages with the implications of a socially diverse citizenry. In interpreting the section 15 equality rights guarantees, the Supreme Court has affirmed the importance of group-based needs and interests, funneling recognition predominantly through the categories of grounds-based discrimination. The explicit inclusion of section 15(2), which protects special group-based ameliorative programs from constitutional invalidity, also reflects a commitment to substantive equality and differential treatment to accommodate specific group-based needs and concerns. It was added in an effort to secure the constitutionality of affirmative action initiatives and to avoid the divisive litigation that had occurred in the United States.38 In the 1980s and 1990s, emerging social movements increasingly celebrated group-based identities and rejected the assimilating tendencies of the individual equal treatment paradigm. Equality advocates in the women’s movement, for example, claimed that women should not only be afforded equality when they could act and be the same as men but that they should be accorded equality despite their differences from men. Feminist scholars suggested that the challenge of equality was not that women be allowed to fit into a male-dominated world, but to transform that world to make it more welcoming for women. As Angela Miles explained it, the challenge was to articulate femaleassociated values and a “feminized humanity.” 39 Lesbians and gay men asserted their entitlement to equality, particularly in terms of recognition of their family life.40 Disability advocates contested the ablebodied prejudices that reduced understandings of their capabilities and denied the possibility of alternative ways of doing things.41 And racialized communities rejected assimilation as the pathway to equality. Courts began articulating a normative vision of equality that transcended the formal sameness of treatment of individuals and embraced a more group-based, outcomes-oriented, and effects-based approach. Beyond the equality rights provisions, the affirmation of groupbased differences is apparent in the interpretation of other parts of the 1982 constitutional reforms. Such affirmation informed the Court’s interpretation of freedom of religion, freedom of expression, and the reasonable limits section of the Charter and was reflected in the interpretive provision affirming the importance of Canada’s

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multicultural heritage.42 The importance of affirming group-based identities was also recognized as integral to the special Charter protections for linguistic minority communities.43 As the Supreme Court recognized in one of its leading judgments regarding these provisions, they are aimed at ensuring the substantive equality of linguistic minority communities through special group-based differential treatment.44 Linguistic minority groups sought to reclaim pride in their linguistic heritage and advocated for minority language education and recognition of the importance of their survival within the Canadian polity. The constitutional reforms of 1982 also included express protection of Aboriginal rights.45 Located outside the Charter to underscore their distinctiveness as collective rights, these provisions protect treaty and Aboriginal rights (including Aboriginal title). Aboriginal communities sought to contest the effects of colonization, endeavouring to restore lost cultural practices and traditions and to reverse the tides of assimilation rooted in policies such as the forced removal of children from their communities to residential schools.46 The collective tenor of emerging social movements and historically subordinated communities resonated with the theoretical insights of scholars exploring the importance of social recognition of group-based identities. For example, Charles Taylor’s writings articulate how individual identity is shaped by cultural affiliation: for individuals to understand their own humanity, they need “a horizon of meaning, which can only be provided by some allegiance, group membership, cultural tradition.”47 Martha Minow explains that conceptions of the self are linked to group-based affiliations, clarifying how individual identity itself “depends on and emerges through relationships with others.”48 At the same time, any legal, social, and theoretical affirmation of group-based rights must confront emerging challenges to essentialist or fixed conceptions of identity as well as challenges to the coherence of legal categories premised on identity politics. As in the statutory domain, according constitutional recognition to diverse groups and moving beyond an individual rights paradigm raise difficult questions about who represents diverse groups, how to account for intersecting and multiple group-based identities, and what to do in the face of conflict both within and between constitutionally recognized social groups. How can the law recognize groupbased differences while being attentive to the risks of essentialism,

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the power dynamics of group-based representation, and the complexity of group-based identities? To what extent does identity politics lead to the legal privileging of some members of a social group in such a way as to result in new problems of exclusion or inequity? Feminists, for example, were confronted with the exclusionary risks of advocating specific law reforms to advance “women’s rights.” Which women’s rights were advanced and whose rights were overlooked in feminist advocacy?49 Similar questions emerged with respect to other groups protected by equality guarantees. With respect to cultural, religious, and racialized communities, questions emerged about how a politics of multiculturalism creates structural risks of what has been called “multicultural vulnerability.”50 Likewise, the equality rights secured for some families within the gay and lesbian communities appeared to create new problems of exclusion as well as reinforcing essentialist definitions of sexual identity.51 Critical disability scholars have also challenged the ways in which the legal duty to accommodate difference has either left dominant norms and structures in place or reinforced a victimization discourse regarding disability.52 Those who had decried the failure of dominant culture to include their distinctive realities were in turn, in some instances, rendering the lives of the least powerful members of their own social groups invisible as dominant members within those groups defined the entire group in their image. The insights of Will Kymlicka, who has written extensively on multiculturalism in Canada, are helpful in delineating the logic and fairness of potential limits on the exercise of constitutional rights and freedoms.53 He endorses the promotion of both ethnocultural diversity and the liberal values of freedom, justice, and democracy. According to Kymlicka, liberal states “should uphold the familiar set of individual civil and political rights” and “adopt various groupspecific rights and policies.”54 Kymlicka elaborates one important distinction between a challenge to group-based practices and traditions from within the group and a challenge from those external to the community. Internal challenges, he argues, deserve greater constitutional protection because they raise questions about different conceptions of community identity within the community itself.55 Feminist post-colonial scholarship, which questions the denial of women’s rights within some group-based constitutional claims (i.e., for freedom of religion), also provides significant insights into how

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to resolve some of these dilemmas without turning away from group-based claims.56 This scholarship challenges a monolithic understanding of community identity premised on the views of those who dominate it. Thus, when women assert their rights in ways that deviate from traditional customs or practices, feminists insist that community identity cannot be used in an exclusionary way to justify a denial of such rights.57 Women are integral to the very community whose identity is being litigated. Feminist scholars also highlight the larger historical context within which current debates occur. Heightened discrimination against women within certain communities reflects a reaction to the processes of colonialism and neo-colonialism.58 Another major concern is the risk of essentialism in which groupbased identities are congealed through the processes of legal categorization, making them both resistant to change and subject to inaccurate caricature. Scholars have increasingly insisted that we should understand cultural and community identity as dynamic and constantly changing. As James Tully writes, “Cultures … are continuously contested, imagined and re-imagined, transformed and negotiated, both by their members and through their interaction with others. The identity, and so the meaning, of any culture is thus aspectival, rather than essential.”59 How then do we recognize group identities in law without entrenching essentialist conceptions of culture and groups? How do we resist law’s tendency to frame group rights in fixed and categorical ways that undermine more dynamic conceptions of identity. One insightful response to the risks of essentialism is developed by Sherene Razack, who clarifies that “the point of anti-essentialism is anti-subordination” and the identification of “multiple systems of domination.”60 It requires, therefore, a “politics of accountability” that engages us in “a search for the ways in which we are complicitous in the subordination of others.”61 While acknowledging the risks of essentialism, she examines how interlocking systems of domination – white supremacy, patriarchy, and capitalism – constitute social hierarchies that have a clear effect on identifiable subordinate and dominant groups. In a similar vein, Linda Alcoff articulates the idea of “positionality,” which “conceives of the subject as non-essentialized and emergent from a historical experience.” Thus, identity is linked to “a constantly shifting context, to a situation that includes a network of elements involving others, the

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objective economic conditions, cultural and political institutions and ideologies and so on.”62 Group-based claims are historicized, contingent, and made in relation to specific institutional, structural, cultural, and social networks. The challenge of assessing the constitutional interpretation of equality is to articulate legal recognition and affirmation of groupbased identities while acknowledging diversity within groups and communities. Countries around the world are looking for ways to simultaneously affirm both national citizenship and diversity. The most innovative scholarship teaches us that we should resist dichotomous constructions of this dilemma. Rarely will it be an either/or choice, but rather a more complex affirmation of universality and diversity that is attentive to power inequities within minority communities and between dominant and marginalized collectivities.

shifting conceptions of the role o f t h e s tat e : i m p l i c at i o n s f o r e q ua l i t y To understand the historical development of constitutional equality rights, it is also helpful to reflect upon how different conceptions of constitutional equality align with varying views on the role of the state. Listed below are the ways in which the traditional understandings of the role of the state implicate different conceptions of equality:

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Classical Liberalism/Formal Equality Equality as an individual right. Equality of opportunity. Equality as equal treatment or sameness of treatment. Discrimination as an exceptional, irrational aberration. Equality grafted onto unquestioned institutional status quo. State to provide equal political and civil rights, but not responsible for social and economic inequalities in private sphere. Assimilationist right to be treated the same as individuals from dominant groups. Social Welfare State/Substantive Equality Equality as a group right. Equality of outcomes. Recognition of adverse effect discrimination: unequal effects of equal treatment based on dominant norms.

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Recognition of systemic discrimination. Equality requires systemic change and revising of dominant norms. State responsibility for social well-being (emergence of idea of social as well as political citizenship). Instrumental conception of law as being able to effect social change. Preventive and systemic remedial approaches regulated by state. Accommodation of differences and diversity. Neo-Liberal Influences on Equality Rights Resurgence of individualism (e.g. emphasis on human dignity). Privatization of responsibility for individual well-being; dismantling the social welfare state. Focus on reducing individual dependency on state: retraining, education, employment. Poverty as beyond the scope of legal equality rights. Systemic economic and social conditions accepted as necessary.

How do these different visions of the state and equality impact upon Canadian law? Diverging from formal equality, recognition of substantive equality was a watershed moment in Canadian legal history. Yet it is important to situate this legal development within the broader historical context of shifting conceptions of the role of government and regulation in the post-World War II era. In examining constitutional equality, it is significant that the quasi-constitutional guarantees in the Canadian Bill of Rights were first introduced in the 1960s, when the post-World War II social welfare state was flourishing. The social welfare state endorsed positive government intervention to secure greater equality of outcomes, to provide a social safety net against poverty and illness, and to advance economic regulation. Yet judicial approaches to equality rights during the 1960s and 1970s continued to be premised on classical liberal understandings of the role of the state, including an exclusive focus on negative rights that offered protection from the state and a vision of formal equality premised on individual equal treatment of citizens regardless of group-based differences and inequitable social realities. Ironically, when Keynesian welfare state ideology was at its political highpoint in the 1960s and early 1970s, the Supreme Court of

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Canada was articulating a classical liberal definition of equality rights (particularly in its interpretations of the 1960 Canadian Bill of Rights).63 This disjuncture continued into the 1980s and 1990s. Then, as the preeminence of Keynesian social welfare public policy approaches began to wane in the mid-1970s, neo-liberalism began to have an impact on Canadian public policy. With government debt rising exponentially, questions emerged about the extent to which the state should secure the social and economic well-being of its citizens. Decentralization of the state, privatization, and government cutbacks on education, healthcare, and social assistance emerged as integral components of neo-liberal policy agendas. Significantly, it is precisely during this neo-liberal period that the 1982 Canadian Charter of Rights and Freedoms was introduced. In interpreting the Charter, the Supreme Court has often articulated its support for a substantive vision of equality that is sympathetic to securing equality of results and attentive to the hidden and systemic dimensions of social inequality.64 But the underlying theoretical implications of substantive equality are far-reaching. Its robust protection is rooted in the egalitarian ideas of social democracy. Equality is measured by actual outcomes: the effects of laws, policies, and programs on economic, social, political, and psychological well-being. The state (via government policy, law, and formal rights) is accorded a primary and instrumental role in securing and enforcing equality. The shift to substantive equality also recognizes that equal treatment can have unequal effects in a world of systemic inequality. It is premised on the idea that histories of disadvantage matter and the accommodation of diversity and difference is sometimes necessary to advance equality of outcomes. While judges appear to have embraced of the concept of substantive equality, the full implications of its redistributive underpinnings remain ambiguous. Substantive equality is out of sync with traditional legal doctrines, steeped as they are in the assumptions of classical liberal thought. To carry substantive equality to its logical redistributive conclusion would be to challenge some of the fundamental economic and political pillars of modern society, something judges are unlikely to do. While the importance of ameliorative state action may be recognized, there continues to be considerable judicial discomfort with the idea of acknowledging positive economic and social rights.65 As well, there is concern that recognizing poverty as a ground of discrimination would have economic implications. Such

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doctrinal developments would require judges to make resource allocation decisions of a political nature – decisions deeply inconsistent with traditional understandings of judicial review. Substantive equality is also profoundly challenged by the pressures of neo-liberal economics and the competitive global economic environment. In the late 20th and early 21st centuries, governments were undertaking significant initiatives to redesign public policies in an effort to reduce expenditures on health, education, social assistance, housing, and social services. The need for a return to privatized and familial responsibility for economic and social well-being, as well as a belief in market forces, were repeatedly advanced to justify deregulatory public policy and law reforms. Courts, therefore, were increasingly required to adjudicate the constitutionality of government regulatory initiatives informed not by redistributive social welfare values but by neo-liberal interests in privatizing social welfare responsibilities, increasing individual responsibility, and responding to global economic competition. Though initiated by the state, these regulatory measures have had detrimental effects on some of the most vulnerable groups in society. By the early 21st century, constitutional scholars began observing the influence of neo-liberal ideals in Charter discourse, “not only in the rejuvenation of the classical liberal ideas of negative liberty and formal equality, but also in the introduction of the neo-liberal discourse of privatization.”66 It became increasingly uncertain whether constitutionalized rights, including substantive equality, could be relied upon to contest these policy developments. During this same era, however, some governments endeavoured to revamp rather than simply reduce social welfare and related policies, endorsing the values of the social welfare state while incorporating some neo-liberal policy trends. One important case that illustrates the need for a careful assessment of the equality implications of public policy developments is Gosselin v. Quebec (Attorney General).67 The case concerned the fairness of an age-based remedial workfare and training program. Social assistance recipients under the age of thirty in Quebec were required to participate in educational or employment training programs to be entitled to receive full social assistance benefits. Failure to participate resulted in a significant reduction in monthly benefits. Louise Gosselin, under thirty at the time of her complaint, found her social assistance payments reduced on a number of occasions when

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she was not engaged in the remedial programs. She maintained that the reduced benefits were so low as to make it impossible to meet her basic needs for food and shelter, thereby denying her constitutional rights and fundamental human dignity. In writing the majority opinion in Gosselin, Chief Justice McLachlin affirmed at the outset that s. 15’s “purpose of protecting equal membership and full participation in Canadian society runs like a leitmotif through our s. 15 jurisprudence.”68 She nevertheless concluded that the workfare program does not violate constitutional equality rights. “The government’s longer-term purpose was to provide young welfare recipients with precisely the kind of remedial education and skills training they lacked and needed in order eventually to integrate into the work force and become self-sufficient. … This was not a denial of young people’s dignity; it was an affirmation of their potential.”69 McLachlin C.J. emphasizes that, “As a matter of common sense, if a law is designed to promote the claimant’s long-term autonony and self-sufficiency, a reasonable person in the claimant’s position would be less likely to view it as an assault on her inherent human dignity.”70 In her dissenting opinion, Madame Justice L’Heureux-Dubé emphasizes that “a discrimination claim should be evaluated primarily in terms of an impugned distinction’s effects.”71 Thus, it is not simply a matter of assessing the category of those less than thirty years of age, one must consider the harsh effects of inadequate social assistance in terms of lack of food, shelter, and the inability to fulfil basic human needs. L’Heureux-Dubé J. concludes that the scheme resulted in a violation of both psychological and physical integrity. “There is little question that living with the constant threat of poverty is psychologically harmful. There is no dispute that Ms. Gosselin lived at times below the government’s own standard of bare subsistence. In 1987, the monthly cost of proper nourishment was $152. The guaranteed monthly payment to young adults was $170. I cannot imagine how it can be maintained that Ms. Gosselin’s physical integrity was not harmed.”72 In another important dissenting opinion, Justice Arbour endorsed a positive rights approach that would impose obligations on governments to provide minimum welfare entitlements to all citizens.73 As the divergent conclusions of judges illustrates, the interpretation of s. 15(1) of the Charter is deeply connected to understandings

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of the role and responsibilities of government. The majority ruling in the Gosselin case, though articulating support for the long term goal of equality, appears to have failed to take into account, to a sufficient degree, the structural conditions of poverty and systemic constraints on individual capacities to participate in retraining and employment initiatives. Conceptions of government also impact upon the interpretation of the reasonable limits section of the Charter. If a court concludes that s. 15(1) is violated, governments can maintain that the violation of equality rights is a “reasonable limit that is demonstrably justified in a free and democratic society” pursuant to s. 1 of the Charter. While courts appear increasingly reluctant to deal with equality rights cases using the section 1 analysis, section 1 is of critical importance in an era of shifting approaches to governance and regulation. The basic Oakes framework for section 1 requires the state to justify, in both substantive and procedural terms, the fairness of its regulatory initiatives.74 If s. 1 is not invoked, the government does not have the burden of justifying its exclusionary choices. It is in this context that an understanding of changing approaches to government regulation is particularly important. Whether one views the state as the predominant source of rights infringements (the classical liberal and neo-liberal visions), as a source of enhancement and protection of rights (the social welfare state), or as some combination of the two will have a major influence on the nature and degree of scrutiny accorded under s. 1. Accordingly, it is essential to have a nuanced understanding of shifting regulatory paradigms when applying the substantive and procedural components of the section 1 analysis. In some equality cases, it appears that judges tend to adopt a deferential stance to government initiatives that seem to be ameliorative.75 While such deference may have been appropriate during the heyday of the Keynesian social welfare state era, it does not provide sufficient protection to human rights in an age of neo-liberalism. Adding to the complex governance context, two developments over the past decade have again transformed the backdrop for constitutional adjudication – the terrorist attacks of 9/11 and the global economic crisis of 2008-09. Both have prompted a revisiting of neoliberal assumptions about government deregulation and instead reaffirmed the role of the state as the primary guarantor of national

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security and economic and social well-being.76 How these events impact upon judicial understandings of equality rights remains to be seen. Fears about terrorism and national security have had a deleterious effect on the rights of religious and racialized minorities.77 The global economic crisis, while prompting government spending as a way to revitalize the economy in ways reminiscent of the Keynesian policies of the Great Depression, also puts a further strain on the resources and generosity of the social welfare state. These concerns are rendered more complex by new and emerging regulatory approaches to governance.

n e w f o r m s o f g ov e r n a n c e The dichotomy between the classical liberal and social welfare state – though still important for understanding public policy choices and initiatives – does not resonate with the complexities of our current regulatory environments. While many suggest that neo-liberalism, with its endorsement of the non-interventionist classical liberal state, has had a significant impact on public policy, political theorists have also identified post neo-liberal trends in governance. These developments, which began at the end of the 20th century have been reinforced by the national security and economic crises of the early 21st century. What then are these new forms of governance and how do they impact upon the constitutional adjudication of equality? Some suggest that new forms of social governance represent a synthesis of both the egalitarian ideals of the social welfare state and the neo-liberal critique of big government with its “command and control” strategies for social change.78 Others maintain that these seemingly new forms of social governance are predominantly inspired by neo-liberal ideology.79 Nevertheless, these new approaches to government regulation are having an important impact on policy-making and law reform. Confronted with these new state initiatives, it is important for judges to appreciate their contours, distinctiveness, and underlying assumptions in order to allow for effective adjudication regarding their constitutionality. It is my contention that although these new forms of social governance may open up new pathways to equality, they also potentially create new problems of inequality. Anthony Giddens, in his book The Third Way: The Renewal of Social Democracy, articulates an approach to governing that moves

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beyond both old-style social democracy and the harshness of neoliberalism. While Giddens recognizes the inadequacy of traditional social democracy, he seeks to reconstruct it rather than replace it with a neo-liberal approach. His “third way” endorses the values of “equality, protection of the vulnerable, freedom as autonomy, no rights without responsibilities, no authority without democracy, cosmopolitan pluralism, and philosophical conservatism.”80 In elaborating a vision of equality as inclusion, Giddens insists that it is critical to redress the exclusion of marginalized groups at  the bottom by ensuring their inclusion in education and employment. He also condemns what he calls “voluntary exclusion,” wherein more privileged social groups opt out of public spaces (e.g. by choosing private schools, private healthcare, walled communities etc.).81 Giddens emphasizes how the two forms of involuntary and voluntary exclusion are connected, with greater marginality reinforcing a greater retreat from the public domain. Because both forms of exclusion are “self-reproducing,” government policy must endeavour to break the self-perpetuating cycles of exclusion.82 Third way governance accords an important role to the state while emphasizing the need to act in partnership with communities to reinvigorate democracy and individual and community well-being. In effect, Giddens advocates a shift from a “welfare state” to a “welfare society,”83 characterized by a robust and healthy civic life.84 One important example of this public policy trend is the shift from a social welfare to a “social investment state.” As defined by Giddens, a social investment state is one whose “guideline is investment in human capital wherever possible rather than the direct provision of economic maintenance.”85 Jane Jenson and Denis SaintMartin characterize such a policy reorientation as a shift from Fordism to “lego TMism.”86 In other words, governments are shifting from “passive spending on social protection to investments that will generate an ‘active society’ and an ‘active citizenry’.” 87 Such measures focus on education and retraining for employment and increased civic participation. The lego imagery underscores a particular concern with the education and training of children, the future citizen-workers. This approach is designed to ensure “supply side egalitarianism” and “implies a conception of equality different from the one embedded in the post-war welfare state.”88 Jenson and SaintMartin explain that whereas “social policy traditionally focused on

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redistribution, on fostering greater equality in the here-and-now … the lego model emphasises equality of life chances.”89 A second important change in regulatory approaches involves a shift from an “instrumentalist state” to a “facilitative state.” David Garland characterizes this shift in the domain of criminal justice policy as a “responsibilization strategy,” or “governmentality.”90 In contrast to the traditional command and control approach to law and policy, responsibilization strategies “extend the reach of state agencies by linking them up with practices of actors in the ‘private sector’ and ‘the community’.”91 Garland maintains that this shift reflects government acknowledgement of what he calls a “basic sociological truth: that the most important processes producing order and conformity are mainstream social processes within the institutions of civil society, not the uncertain threat of legal sanctions.”92 Pursuant to a responsibilization approach, government policy increasingly employs indirect forms of social governance that delegate government law enforcement functions to non-state actors. As Garland explains, “Government authorities are … operating across and upon the boundaries that used to separate the private from the public realm, seeking to renegotiate the question of what is properly a state function and what is not.”93 From a constitutional law perspective, these developments render complex the classical liberal dichotomy between the public and the private. Judicial attempts to respond to these shifts in delineating the contours of the state action doctrine have been understandably complicated, though the Supreme Court has been endeavouring to recognize state action despite the indirect or delegated nature of government responsibility.94 Responsibilization strategies also resonate with the notion of “social capital,” defined as “the networks of social relations that provide access to needed resources and supports.”95 Though still absent from judicial discourse, public policy discourse abounds with discussions regarding social capital. While some scholars view social capital through a structural lens,96 others have advanced more functionalist definitions that emphasize social resources that facilitate cooperation and collective action.97 To this end, it has been suggested that social capital is characterized by “features of social organization, such as trust, norms, and networks that can improve the efficiency of society by facilitating coordinated actions.”98 A further dimension of the social investment turn in public policy is the emergence of public-private partnerships. In this context,

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social investment focuses not on individual capacity-building but on communities and collectivities, providing them with the tools needed to secure enhanced social well-being. Though sometimes used simply as a mask for privatization, there are arguably some genuine partnership initiatives that reflect both continued public engagement and recognition of important non-state actors, particularly collectivities and communities.99 Public-private partnerships have been labeled “post-welfarist” and “post-neoliberal,”100 and as a model of social governance, local partnerships have been distinguished from earlier modes of legal regulation. Wendy Larner and David Craig suggest that “whereas Keynesian welfarist strategies were premised on universalist nation-state conceptions of the social and earlier neo-liberal strategies focused primarily on the individual, the new form of social governance recognises multiple and fragmented social groups.”101 By challenging universal individual rights, partnerships allow for greater recognition of diverse communities and collective rights.102 Moreover, public-private partnerships may promote more “decentralized, locally responsive government.”103 In Canada, the idea of local partnerships has often concerned itself with greater empowerment of Aboriginal communities in the direction of self-government and with linguistic minority communities in terms of greater control over minority language education.104

inclusive processes a n d c o n s t i t u t i o n a l e q ua l i t y How should we put together the pieces of the constitutional equality puzzle? In this chapter I have reviewed judicial articulation a substantive vision of equality, premised on a purposive and contextual inquiry regarding group based disadvantages. I have discussed the comparative dimensions of equality and both the importance and the complexities of recognizing diverse group-based identities. Finally, I have examined how constitutional equality is intimately linked to shifting conceptions of the role of the state – from the classical liberal individual rights paradigm to the social welfare redistributive state and, recently, to emerging new forms of social governance. How can we elaborate a constitutional theory of equality that takes these social, political, economic, and legal complexities into account?

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An important starting point is the foundation provided by the concept of substantive equality, a critical accomplishment in the development of Canadian constitutional law. While the concept of substantive equality was essential to taking us beyond a formal equality that looked only to procedural equal treatment and not to equality of substantive outcomes, focusing only on the effects or conditions of inequality may not provide us with sufficient insight into the institutional and systemic reproduction of inequality. One recurrent difficulty with the constitutional concept of substantive equality is its apparent resistance to any rule-like definition. How much equality is necessary to satisfy constitutional requirements? Substantive equality requires a relative assessment of social conditions, effects, and outcomes, but the contextual factors (including pre-existing disadvantage and prejudice, actual needs, capacities and circumstances, ameliorative purpose of laws or public policies, and the nature and scope of the interest affected) do not seem to provide sufficient guidance.105 In the face of such uncertainty, there is a tendency to want to return to the more formulaic certainty of individualistic formal equality. As appealing as such a retreat may be in a legal culture still deeply imbued with legal formalism, it does not generate equitable outcomes or allow for an appreciation of the complex structural and systemic inequalities in modern societies. Instead, we need to insist upon a clarification of the promise of substantive equality – a clarification based upon a comprehensive enumeration of the concrete and disparate harms of discrimination facing diverse groups – and an assessment of the structural, systemic, and intergenerational processes that result in the reproduction of inequality. Such an inquiry will then set the groundwork for the development of remedial approaches that redress not only the conditions of inequality, but the systemic dimensions of its reproduction as well. What I am suggesting, therefore, is a rethinking of the parameters of substantive equality to incorporate a new synthesizing concept inclusive equality – a concept of equality that emphasizes the integral connection between process and substance.106 Building upon judicial endorsement of substantive equality, defined predominantly in terms of unequal effects and outcomes, inclusive equality prompts us to accord greater attention to structural and systemic processes of inclusion and exclusion. The exclusion of individuals and groups from decision-making processes and the absence of voices from the

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development of public and institutional policies and law, combined with unequal outcomes and effects, provide strong indicators of constitutional inequalities. In turn, enhancing the inclusion of historically excluded individuals and groups in decision-making processes will not only break the cyclical patterns of systemic inequality, it will encourage proactive institutional transformation and reduce the need to rely on adjudicative strategies for securing the effective enjoyment of equality. One way to begin this elaboration would be to revise and add to the contextual factors initially set out in the Law case. Assessing constitutional violations of equality would still be rooted in a substantive and comparative analysis of concrete group-based harms, but it would be supplemented by a more explicit consideration of processes and systems of exclusion that reproduce and institutionalize inequalities. First, there would be an assessment of the concrete and disparate harms resulting from discrimination in terms of their deleterious social, political, physical, psychological, and economic effects. Such a comprehensive assessment of the substantive exclusionary harms that constitute discrimination would be comparative since it is the denial of benefits to some in relation to those provided to more socially privileged groups that is at the heart of discrimination. The comparative focus, however, would track the broad social histories of group-based exclusion and prejudice, rather than the technical legislative categories of differential treatment. Second, the degree or extent of harm would be examined to assess whether the infringement was a relatively minor one or a more significant encroachment on economic, social, psychological, physical, and political well-being (a consideration that resonates with the fourth contextual factor that currently applies). In some cases, very minor infringements may not constitute constitutional violations of equality, or they may be more readily justified in the face of competing social claims. These two broad inquiries track current conceptions of substantive equality. A third type of inquiry, however,would provide greater certainty in the determination of constitutional violations of equality. Beyond a substantive assessment of the nature and degree of the concrete harms of discrimination, a more explicit process-based analysis could be added to the contextual factors. While it is partially embedded in the current doctrinal approach, such an inquiry would engage

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judges more overtly in an assessment of the structural exclusionary practices and systemic processes that reproduce patterns of groupbased inequality. Evidence of long-term and institutionalized exclusion from decision-making processes and practices should increase the likelihood that disparate harmful effects would be found to be discriminatory. Accordingly, the contextual factors might usefully be reframed as follows: 1 Types of Harmful Effects: – Economic exclusion or disadvantage – Social exclusion from important non-material components of social life (e.g. work, education, culture) – Psychological harms to dignity, respect, integrity, identity – Physical harms to bodily integrity, security, health and well-being – Political exclusion 2 Degree of Harm: – An assessment of the degree or extent of harm (from relatively minor infringements to significant or major encroachments on economic, social, psychological, physical, political well-being) 3 Exclusionary Processes and Structural/Systemic Dimensions of Harm: – Pre-existing disadvantage107 – Reinforcement of disadvantage, vulnerability, harmful dependencies108 – Exclusion from decision-making processes – Absence of democratic participation109 – Absence of consultation110 – Access to justice, institutions, processes – Failure to investigate possibilities of accommodation111 Thus, the harms of discrimination include the actual economic, psychological, physical, social, and political conditions of disadvantage and exclusion. They result from, and are legitimized and reproduced by, societal, structural, and systemic processes that exclude socially disadvantaged groups and individuals from political, institutional, and social decision-making. This reframing of the contextual factors to include an explicit assessment of structures, systems,

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relations, and processes of exclusion would reinforce and promote an inclusive conception of equality. Inclusive equality, therefore, emphasizes not only the substantive conditions for equitable distribution of public goods and societal resources but probes the processes for democratic inclusion, accountability, consultation, voice, and accommodation. Incorporating attentiveness to process-based exclusions provides insights into the systemic reproduction of group-based inequalities over time. Such an inquiry also sets the groundwork for the development of remedial approaches that redress not only the conditions of inequality but the institutional and structural dimensions of its reproduction as well. Heightening the responsibility of government to act fairly, consult with and listen to divergent perspectives, weigh existing evidence and research knowledge carefully, and make unbiased decisions is critical to the enhancement of inclusive equality. In addition to assessing the importance of the procedural aspects of equality violations pursuant to section 15 of the Charter, the idea of requiring governments to prove that they have acted reasonably, fairly, and in accordance with fundamental human rights is an important component of a section 1 inquiry. Furthermore, adjudicating procedural fairness is a longstanding and central concern of public administrative law. Indeed, in some cases, judges have focused on administrative law as the most appropriate source of protection for ensuring government accountability and respect for human rights.112 The overlap between the procedural fairness at the heart of administrative law and of constitutional inquiries is significant. It is important to note that an expanded contextual analysis necessarily operates at multiple levels, touching upon individual, institutional, and broader structural relations and interactions. The contours of such a multi-layered approach to contextualism in legal interpretation are elaborated in the next chapter. Spanning individual narratives of exclusion and larger institutional and structural dimensions of inequality, a multi-layered contextual approach has the potential to enhance and expand our legal understanding of equality and non-discrimination. For it is only by creating the conditions that encourage us to hear the stories of inequality, understand their connection to larger systemic patterns of exclusion, and restructure human and institutional relations in both public and private life that we will begin to redress both current problems of inequality and their intergenerational and structural reproduction.

3 Contexts of Inequality: Identifying and Remedying Discrimination Real lives, contemporary women’s lives, should not only be taken seriously but should be regarded as primary in interpreting constitutional guarantees which impact directly or indirectly on women’s equality. Experiences must not be “shoehorned” to fit within constitutional guarantees; rather constitutional guarantees must be interpreted in a way that is responsive to women’s reality. Madame Justice Wilson1

t h r e e l ay e rs o f c o n t e x t ua l a n a lys i s : from micro to macro Developing a vision of inclusive equality that is attentive to both the substantive and procedural harms of discrimination raises complex questions regarding the type of evidence and knowledge required to prove a violation of equality rights. In this regard, it is important to consider more fully the contours of a contextual approach to legal interpretation – an approach that emerged to reinforce the shift from formal to substantive equality. The origins of contextualism as a constitutional methodological approach are usually traced to Madame Justice Wilson’s judgment in Edmonton Journal v. Alberta (Attorney General), where she explained that “a right or freedom may have different meanings in different contexts.”2 Rather than assessing conflicting rights, freedoms, and interests in the abstract, Justice Wilson emphasized that a contextual approach is “more sensitive to the reality of the dilemma posed by the particular facts.”3 The importance of a contextual approach was further consolidated in equality rights jurisprudence.4

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While many have applauded the Court’s insistence on a contextual approach, the subsequent uncertainty about how a contextual method applies to a diverse range of cases has prompted critique and significant questions about the wisdom of this doctrinal turn.5 Indeed, contextualism sometimes appears to promote unconstrained subjectivity in the adjudicative process. Inspired in part by the “living tree” metaphor of constitutional interpretation,6 the contextual approach to interpretation is in need of further elucidation and clarification. A contextual approach to inclusive equality requires a broad-ranging inquiry to embrace the voices and stories of exclusion and discrimination, information about institutional policies, practices, and the systemic dynamics of exclusion, and knowledge of the larger social and structural realities of inequality. These multiple layers of contextualism can be understood to embrace a micro-level, an intermediate, meso, or institutional level, and a macro-level of contextual analysis. Micro-contextualism focuses on the experiential harm of discrimination from the perspective of the affected individual or group. It amplifies and creates the conditions for hearing the stories of discrimination and understanding how social exclusion operates in day-to-day life. In the domain of discrimination, moreover, individual experiences (the micro-level) need to be connected to larger societal and group-based realities (the meso and macro-levels) because the harm of discrimination is integrally linked to the larger social context and the comparative dimensions of denial, mistreatment, and exclusion. It is being paid less, being denied access where others are welcomed, being overlooked for a promotion despite equal qualifications, being harassed because of one’s membership in a particular social group(s). Indeed, macro-contextualism requires us to consider even global and international processes and structures of exclusion. Discrimination analyses, therefore, implicate a socially situated individual and are enhanced by a broad contextual inquiry that addresses individual stories, institutional relations, systemic practices, and larger structural and societal patterns of inequality and exclusion.

the micro-context: experiential k n ow l e d g e a n d n a r r at i v e s At the micro-level, a contextual approach validates experiential knowledge. Drawing on insights from what has been called “standpoint

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theory,” it asserts the importance of informing our theoretical analyses with experiential knowledge from the “lives of marginalized people.”7 Though critiqued for its essentialist assumptions about groups and representation in society,8 a critical component of standpoint theory, which is still widely endorsed, is the idea that one’s social location “enables and sets limits on what one can know.”9 Standpoint theory has important implications for the concept of equality for it asserts that those in subordinate social positions have access to knowledge that eludes more privileged members of society. It reverses a widespread misconception that those with more power have more knowledge. Instead, standpoint theory affirms that those with less power in society – those on the margins – have experiential knowledge that is unavailable to those with power and authority. Carol Gilligan explained this idea back in 1984 at a symposium at Buffalo Law School, commenting, “If you have power, you can opt not to listen. And you can do so with impunity … If you have an unequal power situation, the people with greater power know less. Secretaries know more about their bosses than bosses know about their secretaries.”10 Persons using wheelchairs know more about wheelchair accessibility into a building than those who need not notice whether they climbed a step or steps in entering a building. Parents of children with disabilities know more about educational services and special needs education than parents whose children do not have mental or physical disabilities. Individuals from racialized communities live the harms of racism, including its overt and subtle sources of disadvantage and exclusion in everyday life, while individuals from the dominant culture can remain unaware. Indeed, a recurrent theme in feminist analyses of law has been the importance of revising, expanding, and transforming legal categories to resonate more fully with the lives of women and other socially disadvantaged groups. Validating experiential knowledge is critical to a robust conception of legal discrimination. When individual stories of exclusion and harm are linked to group-based realities, they reveal problems of discrimination. An individual’s mistreatment is understood in relation to his or her group-based identities. This is the essence of discrimination: it takes us beyond isolated individual stories of betrayal, loss, abuse, and denial by connecting them to patterns of group-based exclusion and harm.11 A deep commitment to listening to the narratives of exclusion and prejudice is not only important for identifying problems of discrimination; it is also an essential source

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of information about effective remedies. The experiential knowledge of those without power must be given a predominant role in developing strategies for change. It is unlikely that those who have enjoyed power and privilege based on the historical institutional status quo will be capable of imagining the kinds of transformations needed to implement human rights norms. To them, exclusionary norms and practices often appear necessary, despite their unfortunate effects on those who have been denied equality rights. This is not to suggest that those who have been harmed by discrimination and prejudice will have a perfect blueprint for remedying society; nor should those who have been privileged in terms of power and status be exonerated from taking responsibility for eradicating problems of inequality. It is essential to be committed to addressing issues of inequality, even if one is privileged by the inequality. Nevertheless, solutions imposed from above will not be as effective in providing sustained change as those generated by individuals from groups who experience inequality in their daily lives. Some of the most creative and imaginative ideas for redressing the harms of discrimination emerge from the lived experience of exclusion. Therefore, attentiveness to the micro context of inequality emphasizes the importance of listening to, and building upon, the solutions proposed by those with the experience of discrimination. As Iris Marion Young has argued, “a democratic public… should provide mechanisms for the effective representation and recognition of the distinct voices and perspectives of those of its constituent groups that are oppressed or disadvantaged.”12 Adjudication is one mechanism for hearing the voices of the excluded but it is an expensive and relatively inaccessible means for hearing narratives of inequality. Political activism is another channel for the articulation of the grievances of exclusion; yet many of those whose lives are most damaged by systemic inequalities are not engaged in formal politics. It is thus important to be attentive to inclusive forms of consultation and non-traditional mechanisms for learning about the experiences of inequality. For example, public consultations that take place in the community in a way that encourages individuals and groups to share their insights, concerns, and solutions have proven an effective source of experiential knowledge. Creating structural mechanisms for hearing the voices of those usually excluded is also essential in the myriad institutional contexts of everyday life. Such an inquiry takes us to the meso-level of contextual methodology, to uncover the inequities embedded in institutional processes and practices.

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Before turning to the institutional dimensions of a contextual approach, it is important to acknowledge some of the limits and difficulties of individual narratives and experience-based knowledge. First, there is no unmediated raw experience that conveys noncontroversial truth claims. All experiential knowledge is mediated by the teller in the particular relational context within which the narrative is told.13 Experiential knowledge is neither objective nor infallible. Second, channeling experiential knowledge of harm or victimization into the constraints of legal rights and obligations may distort the complexity and nuances of the situation or fail to capture the full meaning of exclusion or inequality. Some scholars decry the risk of distorting the complexities of the lived realities of inequality through the classificatory exercise of delineating legal rights and remedies. Legal analysis requires that we connect complex experiences of harm, exclusion, stereotyping, prejudice, and disadvantage to the legal category of discrimination, resulting in a risk of mismatch between life, with its manifold complexities, and the austerity of legal categories.14 Third, while the experiential knowledge at the heart of microcontextualism often involves storytelling, stories are not always transformative. Patricia Ewick and Susan Silbey distinguish “hegemonic” from “subversive” stories.15 While subversive narratives challenge the status quo and existing relations of power and privilege, hegemonic stories reinforce traditional understandings of the world.16 Stories often operate as mechanisms of social control, articulating and reproducing existing ideologies and hegemonic relations of power and inequality. Even when stories are told by socially disadvantaged individuals there is a risk that victimization will be accentuated (i.e. as a strategy to win in court), thereby reinforcing stereotypes of powerlessness by undermining agency and consolidating the legitimacy of traditional legal structures.17 Sherene Razack explains how the “problems of voice and identity are packed with internal dilemmas not only for the listeners but also for the tellers of the tale. Often women of colour are asked to tell their stories while others will do the theorizing and writing up.”18 In law, it is often lawyers, experts, or judges who mediate experiences to fit them into existing legal categories. Moreover, in some institutional contexts, the association between an individual’s situation and his or her social group is not obvious and may even be denied if the search for social legitimacy requires justifications for the fairness of the status quo. In such cases, individual stories will

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appear as anomalous rather than as indicators of broad patterns of systemic inequality or discrimination. In these instances, evidence about the systemic, institutional, and structural contexts of inequality is critical.

the institutional or meso-context Applying a contextual approach at an intermediate level means that we examine the institutional context within which discrimination and inequality occur. One critical dimension of systemic discrimination is its dynamic nature, reproducing itself within a wide range of social, political and economic institutions. The institutional dimensions of inequality are to be found in the norms, practices, rules, and culture of a particular workplace, profession, educational institution, organization, community. How is decision-making organized within the institution? What forms of hierarchy exist? How are individual tasks and responsibilities organized and allocated? What are the power structures that operate within an institution? What forms of mentoring or education occur within the institution? Institutional relationships and structures are also critical to innovative remedial strategies – strategies that incorporate concerns about inclusion and non-discrimination into organizational decision-making. To identify problems of exclusion and discrimination in institutions and organizations, therefore, it is useful to examine not only the effects or conditions of inequality but also the structures, systems, and processes that reproduce them. It is also important to note that identifying systemic forms of discrimination usually requires both quantitative and qualitative evidence of disadvantage and exclusion.19 The qualitative evidence involves the multiple stories of harm and disadvantage - the individual stories described at the level of the micro-context. The quantitative evidence involves historical and current data of exclusion within a particular institution or more generally in society. Both types of evidence provide insights into the exclusionary effects of how institutions operate on a daily basis. A further important source of insight on the institutional dynamics of inequality is the literature on legal pluralism, which is premised on the idea that society is influenced by multiple or plural normative orders.20 Formal legal norms, contained in human rights statutes and constitutional documents, co-exist with other informal sources of normativity. These include the institutional rules, policies,

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culture and traditions of the myriad social and economic institutions in which we participate, such as workplaces, schools, universities, corporations, communities, religious organizations, and families. Since these various social and economic institutions often contain co-existing dominant and subjugated social norms, they are not monolithic in terms of the norms and practices they endorse.21 Legal pluralists maintain that recognition of the multiplicity of norms, embedded in what is sometimes called formal and informal law, is essential to understanding human behaviour and social interactions. In essence, legal pluralists reject an exclusive focus on state-based norms and an “ideology of legal centralism.” insisting that the intersection of law and society is more complex than an instrumentalist vision of law suggests.22 In examining legal pluralism, Sally Engle Merry explores “the way state law penetrates and restructures other normative orders through symbols and through direct coercion and, at the same time, the way non-state normative orders resist and circumvent penetration or even capture and use the symbolic capital of state law.”23 She identifies four ways in which formal law interacts and is affected by other non-formal legal normative orders. First, formal state law “infiltrates and restructures alternatives so that they come to resemble state law.”24 Thus, non-formal social and institutional processes and practices tend to be shaped to conform to formal legal processes and practices. Second, the language and symbols of formal law are used in informal contexts and disputes to strengthen the legitimacy of individual and group claims (e.g. reliance on rights discourse outside of formal adjudicative contexts). Third, “state law both constitutes and is constituted by” other normative orders.25 With respect to the family as a social and legal entity, she writes, “Both state law and semiautonomous social fields are constituted in significant part by their interrelations with one another: the family and its legal order are shaped by the state, but the state in turn is shaped by the family and its legal order because each is a part of the other.”26 Lastly, Merry maintains that legal pluralism operates through facilitative law, that is, through “law that functions not by imposing obligations but by providing individuals with facilities for realizing their wishes through conferring legal powers on them.”27 All of these observations about the patterns of interaction between formal law and institutional realities are critical to the realization of equality and the formulation of human rights implementation

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strategies. For many human rights advocates, legal pluralism appears threatening and counterintuitive to the long struggle for formal legal recognition of human rights for disempowered individuals and groups. And yet it is critical that equality rights scholars and advocates recognize that an exclusive focus on formal legal rights may fail to take into account the important effects of multiple and overlapping normative orders on both the effective enjoyment and the systemic violation of human rights. While informal rules and practices may advance equality, in many instances they reinforce institutional resistance to equality-promoting reforms. Laws affirming equality rights, non-discrimination, protections against harassment and equity initiatives are aimed at changing the status quo within social institutions by rendering possible the inclusion of those who have historically been excluded or improving the lives of those relegated to the bottom of institutional hierarchies. In the case of such transformative law reform, however, it is common for “established norms and institutions … to resist displacement by new formal legal rules.”28 In her work on institutional resistance to law reform, Linda Hamilton Kreiger distinguishes laws “that reinforce established institutions and social meaning systems from laws designed to destabilize, subvert, and ultimately reconstruct them.”29 She explains that transformative law reform faces two types of socio-legal institutional resistance: capture and backlash. Capture is a more subtle and indirect form of resistance where, through a variety of indirect administrative and interpretive processes, the transformative potential of law reform initiatives is undermined.30 As Kreiger explains, “entrenched norms and institutionalized practices, operating as taken-for-granted background rules, systematically skew the interpretations of transformative legal rules so that those rules increasingly come to resemble the normative and institutional systems they were intended to displace.”31 In contrast to the phenomenon of capture, Kreiger notes that backlash is much more overt in its rejection of transformative law reform. In the case of backlash, “opponents of the new legal regime explicitly reject one or more of its key elements, and ground that rejection in open assertions of the normative superiority of the preexisting socio-legal framework.”32 Socio-legal backlash often emerges at the moment when transformative legal norms are having an actual impact. Prior to that moment, capture techniques seem more prevalent. Pre-existing social and institutional norms persist and

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may even be inadvertently reinforced in the face of challenges to their validity or fairness. In light of the complexities and strength of institutional resistance to transformative law, it is critical to assess the interface between formal human rights and institutional customs, traditions, norms, relations, processes, and practices. While the insights of legal pluralism teach us about the likelihood and risks of institutional resistance to equality, legal pluralism also prompts us to consider how, in some contexts, informal norms and rules may help to redress social and institutional inequities. As Susan Sturm writes:“[l]egal norms play the role of opening spaces for ongoing engagement about current practice in relation to aspirations that have been identified to be of public significance. Law is elaborated through dynamic interactions on the ground. Law institutionalizes occasions for analysis, reflection, relationship-building, boundary negotiations and institution-building.”33 She maintains that there should be “a dynamic, rather than purely instrumental relationship between right and remedy.”34 Any unilaterally imposed judicial legal rule or principle risks failing to “provide the specificity and guidance needed to answer hard questions and still respond to the diversity and fluidity of contexts to which the principle must apply.”35 To ensure that inequality will be eradicated in a more sustaining way, remedies cannot consist simply of damage awards or isolated individual relief, as important as these remedies may be. Rather, remedies need to address the problem of the reproduction of inequality: they need to be directed at restructuring the institutional relations that create and/or perpetuate systemic inequalities. No longer can we simply locate the problem of inequality in the “victim” or in an isolated act of the perpetrator. We need to look at the relational dynamic of inequality and its institutional expressions.36 Thus, process-based legal requirements for inclusion in institutional governance are essential to an expansive interpretation and application of substantive human rights norms. Such processes of inclusion in institutional governance could range from increased obligations to consult to the promotion of more participatory democracy in institutional decision-making.37 Incorporation of such procedural considerations is central to conceptions of inclusive equality. Promoting proactive and systemic legal strategies for empowering those who have been excluded and those at the bottom of social and institutional hierarchies will make

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possible a social justice that emerges at the interstices of human and institutional relationships. As Dennis Patterson puts it “law is an interpretative enterprise whose participants engage in the production of, and debate about, explanatory narratives … law is an activity and not a thing. Its ‘being’ is in the ‘doing’ of the participants within the practice.”38

the macro-context: systems a n d s t ru c t u r e s o f i n e q ua l i t y In addition to being attentive to individual stories and institutional practices of exclusion, prejudice, and harm, it is important to  examine questions of inequality in light of the larger social, historical, economic, and political context – to explore “macro-contextualism.”39 Institutions function within larger socio-economic, political, and familial spaces and, in turn, operate at a multiplicity of levels: the community, the region, the province, the nation, the world. As Martha Minow and Elizabeth Spelman note in their analysis of context in legal reasoning, “[p]erhaps paradoxically, then, the call for context represents a call to consider societal structures of power that extend far beyond the particularities of a given situation.”40 Minow and Spelman further clarify: “[a]bstract theories are in some sense rooted in particular contexts and operate within contexts with real and particular effects that often benefit some people more than others. At the same time, contextual approaches are in some sense expressive of abstract theories.”41 Traditional legal theory often renders the background systemic context invisible or treats it as neutral, even if it consists of poverty, unequal power relations, and inequality. The Supreme Court of Canada has recognized the importance of the larger societal context to judicial decision-making. For example, in R. v. S. (R. D.), the Court was confronted with a case involving allegations of judicial bias.42 A provincial court judge, Corinne Sparks, the first black woman to be appointed to the judiciary in Nova Scotia, made comments about the problem of systemic racism in policing prior to acquitting a black youth charged with obstruction of justice. In a concurring judgment, Justices L’Heureux-Dubé and McLachlin concluded that judicial objectivity is enhanced by a contextual appreciation of social realities, including, in this case, systemic racism.43 It is noteworthy that they cite feminist scholar Jennifer Nedelsky, who in turn draws on the philosophical insights

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of Hannah Arendt on “enlargement of mind.”44 Jennifer Nedelsky maintains that “[i]t is the capacity for ‘enlargement of mind’ that makes autonomous, impartial judgment possible … impartiality is not some stance above the fray, but the characteristic of judgments made by taking into account the perspectives of others in the judging community.”45 The idea of enlargement resonates with contextualism. Both endeavour to broaden the relevance of an expanded understanding of social reality. Indeed, one of the most important contributions of feminist legal scholarship has been to contest the neutrality of the starting point of legal debates. Constitutional limits on the regulation of expression, for example, do not take place in a world where absolute freedom of speech exists. Rather, constitutional limits must be assessed while taking into account the systemic and structural inequalities of free expression in the private sphere.46 Similarly, debates about abortion must be situated in the context of social inequality in gender relations in general and inadequate birth control, the lack of social support for childrearing, and coercion in sexual relations, in particular.47 Debates about the post-divorce breakdown of economic responsibilities should take into account the feminization of poverty and the impact of childrearing responsibilities on career advancement.48 Sexual harassment should be understood in the broader context of the gender of hierarchy in the workplace, unequal power relations, and the sexualization of traditionally female jobs.49 Understanding these larger contexts of structural and systemic inequality facilitates our ability to comprehend the significance of individual stories of inequality. In examining the macro-contexts of inequality, it is also essential to examine the connections between different social and institutional contexts – connections that traverse family, employment, educational, and community life. Discrimination in the workplace, for example, is closely linked to issues such as child care and support for family responsibilities, educational and training opportunities, access to public transportation for individuals with disabilities, and recognition of diversity between different communities and their socio-economic needs and concerns.50 It is useful to elaborate on these connections. In this regard, it is important to revisit the Justice Rosalie Silberman Abella’s Report on Equality in Employment, which included extensive recommendations beyond employment equity.51 An entire chapter of the report dealt with education and training; another was devoted to childcare. In reflecting upon the continuing

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challenges of inclusive equality, these largely overlooked chapters deserve renewed attention. They attest to the connection between workplace equality and the larger social context in which employment opportunities are situated (i.e., access to childcare and effective educational preparation) and underscore the need to look beyond the institutional boundaries of the workplace to examine the larger social and economic contexts of discrimination. Justice Abella realized far earlier than many that workplace equality cannot be secured in a vacuum. In her analysis of childcare, for example, Justice Abella affirmed the importance of social policies that promote the reconciliation of paid work and family responsibilities. She recognized that for women to have equal access and opportunities at work, childcare is essential.52 While Justice Abella acknowledged back in 1984 that as “a practical matter, a childcare system as universal as our educational system may be some time away,” she nonetheless concluded that child-care “should be seen as a public service to which every child has a right.”53 Thus, the ability of women in particular, to participate equally in the labour force is deeply affected by the presence or absence of support systems at home and in the community for taking care of family members, including young children, ill family members, and elderly parents.54 Twenty years after Justice Abella endorsed the importance of childcare, Canadian governments are beginning to debate the implementation of a national childcare initiative.55 We are also witnessing a shift in focus from child-care as a right of the working parent to conceptualizing it as the right of the child, specifically in terms of access to early childhood education. In a report published by the Organization for Economic Cooperation and Development (oecd), however Canadian child care policies were critiqued as “a patchwork of uneconomic, fragmented services.”56 One important exception to this policy trend in Canada is the Quebec government’s development of a comprehensive child care and early education initiative.57 The early education model has been adopted by other oecd countries in the wake of significant social science data indicating that high quality and accessible early childhood education is a critical first step in securing equality of life chances for all children, particularly those from socially disadvantaged communities.

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The connection between the spheres of work and education must also be analyzed. In her chapter on education and training, Justice Abella canvasses a wide range of issues in response to her findings that “[t]he economic disadvantages faced by members of the designated groups stem, in no small part, from deficiencies in their education.”58 Government policy on education and training represents another example of a socio-structural dimension of workplace equality. As Abella clarifies, a focus on education and training would mean, for example, that new immigrants could obtain the language and professional training and recognition of their foreign degrees and integration into Canadian workplaces. It would engage us in developing strategies for integrating young students with mental or physical disabilities into the regular classrooms as a pathway to future acceptance in mainstream (not “sheltered”) workplaces. It would include the promotion of literacy programs and adult education. It would require equitable access to post-secondary education. In short, it would mean ensuring education as a basic human right and recognizing its critical link to equality at work. Sometimes described as “supply side egalitarianism,” the focus on education reflects a shift from the post World War II redistributive social welfare state to the social investment state – from redistribution of outcomes to redistribution of opportunities to allow individuals and communities to secure more equitable outcomes for themselves in the future.59 Equalizing educational opportunities, from early childhood education to university and professional training, becomes a central preoccupation of the promotion of economic and social well-being. The diversity of community contexts for equality represents a further socio-structural consideration. For example, addressing inequality in diverse indigenous communities across Canada raises questions of social and economic development in the community.60 While anti-discrimination laws and policies often focus on promoting the integration of individuals into mainstream institutions (i.e. non-Aboriginal institutions), for many individuals living in Aboriginal communities, equality means advancing self-government and enhancing social and economic development in the community itself.61 In Canada, as in many countries of the world, indigenous communities are developing a renewed resistance to the legacies of colonialism and risks of neo-colonialism. Efforts to reconstruct

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Aboriginal communities in ways that will help them to escape cycles of dependency and poverty, violence, and addiction are occurring across Canada in diverse First Nations, Inuit, and Métis communities. This community-based understanding of equality puts significant emphasis on socio-economic development initiatives aimed at sustaining and reinforcing traditional economic activities within Aboriginal communities. Community well-being concerns are also central to equality issues in small towns dominated by one industry or one type of economic activity. These concerns fundamentally reorient public policy thinking on equality, prompting us again to enlarge the boundaries of discrimination. Macro-contextualism also requires attentiveness to the international and global dimensions of inequality. Economic restructuring in the face of increasing global integration and competition, for example, has resulted in downsizing, contracting out, the rise of contingent, temporary and part time work, and the shifting of production to lower wage countries. These structural changes in the economy, occurring in both the private and public sector, have resulted in an increase in precarious employment and present significant challenges to effective protection against discrimination.62 The predominant regulatory approaches, including basic human rights and labour standards protections, pay equity, and employment equity, provide the most comprehensive and enforceable protections to employees with full-time, preferably unionized, permanent jobs with large employers. Largely beyond the regulatory reach of antidiscrimination laws are the growing numbers of isolated, vulnerable, and more marginalized workers in non-standard employment. To the extent that our regulatory strategies still presume a full time, blue collar, industrial norm – a Fordist norm – they are sorely inadequate to a post-Fordist economic reality.63 Examining inequality through a global lens also prompts thinking about expanded internationalized structures for social, economic, and political accountability. David Held advocates “cosmopolitan democracy” to ensure “democratic accountability across major regions and international structures.”64 In the context of workplace equality, international bodies, such as the International Labour Organization, and regional initiatives, such as the North American Agreement on Labor Cooperation (naalc), have an important role to play in this regard.65 Recognition of the internationalized dimensions of discrimination also requires closer scrutiny of how

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the global economy is regulated through domestic political channels. Saskia Sassen highlights the integration of globalization into national public policy: “Detecting the extent to which the global is embedded and filtered through the national … is one way of understanding whether a possibility lies therein for citizens, still largely confined to national institutions, to demand accountability of global economic actors through national institutional channels, rather than having to wait for a ‘global’ state.”66 Developing an interpretive approach that more explicitly recognizes the distinctive yet overlapping levels of contextualism is essential to elaborating a robust conception of equality. It allows for a more comprehensive and expansive assessment of discrimination and provides insights into more transformative remedies. Guy Rocher has commented that “it is precisely in the analysis of the interactions between law and the social, economic, political, and cultural context that the sociology of law finds it raison-d’être.”67 In developing a contextual approach, however, it is important to resist an instrumental understanding of law as separate from other social forces and relations. Rocher further explains that although law is often seen as a reflection of societal changes, law both constitutes and is constituted by social, political, cultural, and ideological change.68 While such an integrated vision of law and society provides important insights for critical analyses, it also raises key questions about social responsibility and the exercise of agency in human and institutional relations. Attentiveness to the myriad contexts of inequality – to experiential knowledge of inequality, the institutional barriers to inclusion, and the larger socio-structural constraints to equality – needs to be incorporated into approaches to institutional governance and human relations in diverse social settings. As Rocher reminds us, a human rights charter is an instrument of both individual and collective agency. It operates within the spheres of formal law and politics. Yet, beyond that, it operates within society and is used by individuals in their personal lives and in informing their actions in solidarity with others.69

4 Developing a Systemic Approach: Experiential Knowledge and Sexual Harassment

In this chapter, I focus on sexual harassment in the workplace to illustrate the importance of a multi-layered contextual approach to inequality. I maintain that an understanding of how vulnerability to harassment is embedded in organizational structures, practices, and institutional cultures is critical to the development of effective strategies for eliminating sexual harassment in particular, and discrimination more generally. While our understanding of discrimination has been revolutionized by the recognition of adverse effect and systemic discrimination, the problem of sexual harassment has in many respects failed to incorporate the full implications of a systemic analysis and continues to focus on the moral blameworthiness of the individual perpetrator. Sexual harassment does not fit comfortably into the paradigm of systemic discrimination: we tend to view sexual harassment as a problem of aberrant individual wrongdoing rather than a systemic problem. As Margaret Thornton notes, the “privileging of the sexual in sexual harassment means that the focus is on the aberrant behaviour of individuals rather than the structural or systemic manifestations of discrimination.”1 Although sexual harassment has resisted a systemic analysis, it is essential to examine the broader structural and institutional factors that heighten vulnerability to harassment. Of particular significance is the way in which the experiential narratives of women workers reveal a range of recurrent systemic problems in their accounts of the subtleties, harms, fears, threats, and realities of harassment. The micro-contextual knowledge drawn from the experiences of women workers provides insight into the meso-contextual or institutional factors that increase the likelihood of harassment. These factors include institutional realities such as isolation of individual women in

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male-dominated jobs and in traditionally female jobs; the sexualization of many jobs where women predominate; sexist, racialized, and hierarchical supervisory structures; and precarious job security in the face of economic restructuring. These systemic and structural inequities create an institutional environment in which women become more vulnerable to harassment. Understanding the significance of these institutional factors, in turn, requires an appreciation of the larger macro-historical realities of gendered and other inequalities. While this type of inquiry suggests that the effective prevention and remedying of sexual harassment at work requires proactive changes to the structural and systemic conditions that increase the risk of harassment, such a broader systemic inquiry is not the usual focus of anti-harassment measures. Instead, anti-harassment measures tend to be directed at changing individual behaviour and remedying past misconduct through individual complaints mechanisms. While targeting individual accountability is important, developing a more comprehensive, proactive, systemic, and preventive approach will ultimately do much more to provide an environment that welcomes diverse women as equal colleagues and citizens at work.

limitations of current legal a p p roac h e s to s e x ua l h a r as s m e n t Although sexual harassment has a long history, it was not until the 1970s that the legal concept of “sexual harassment” emerged. The pathbreaking work of Constance Backhouse and Leah Cohen in their 1978 book, The Secret Oppression: Sexual Harassment of Working Women,2 and the compelling arguments of Catharine MacKinnon in her book Sexual Harassment of Working Women,3 published in 1979, where she made a persuasive case for conceptualizing sexual harassment as a form of sex discrimination, paved the way for reliance on human rights anti-discrimination protections in cases of sexual harassment. In 1980 the case of Bell v. Ladas4 was the first time a human rights tribunal decision in Canada found that sexual harassment constituted a prohibited form of discrimination. Adjudicator Shime explained why sexual harassment should be understood as sex discrimination: Where a woman’s equal access is denied or when terms or conditions differ when compared to male employees, the woman is being discriminated against. The forms of prohibited conduct that,

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in my view, are discriminatory run the gamut from overt gender based activity, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment.5 Indeed, in 1987 the Supreme Court of Canada confirmed that sexual harassment should be understood as a form of sex discrimination.6 Throughout the 1980s, human rights codes across Canada were gradually amended to provide explicit protection against sexual harassment as well as other types of grounds-based harassment (i.e. racial harassment).7 More recently, protection against psychological harassment has also emerged in Quebec and in Saskatchewan.8 While allegations of harassment often implicate human rights legislative protections, particularly with respect to problems occurring in the workplace and in educational institutions, harassment is nevertheless linked to broader constitutional equality concerns. This is the case because most protections against harassment are included in legislation that must be in compliance with constitutional norms. Additionally, governments have important responsibilities for ensuring that harassment is prevented more effectively and proactively. Understanding sexual harassment as a form of discrimination reflects a more systemic approach that requires connecting the individual experience of the woman being harassed to the collective experiences and condition of women as a group.9 The doctrinal definition of sexual harassment, however, has resisted the collective and systemic implications of the turn towards an analysis based on discrimination and equality theory. When the Supreme Court recognized sexual harassment as a form of sex discrimination, it defined such harassment as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse jobrelated consequences for the victims of the harassment.”10 While the Supreme Court endeavoured to define sexual harassment broadly, the notion of “unwelcome conduct” risks reinforcing an individualized and perpetrator perspective in harassment cases.11 As Arjun Aggarwal explains, “the challenged conduct must be unwelcome ‘in the sense that the employee did not solicit or incite it, and in the sense that the employer regarded the conduct as undesirable’.”12 Often the unwelcome standard is articulated in terms of whether or not the alleged harasser “knows or ought reasonably to have

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known” that his sexual conduct was unwelcome.13 While the perpetrator must act reasonably, and the standard is based on whether he knew or should have known that the conduct was unwelcome, there remains a risk that a sexual harassment complaint could be rejected despite a genuine experience of harassment by the victim. In effect, the perspective of the perpetrator becomes the measure for whether or not there was in fact harassment.14 If we adopt the complainant’s perspective for assessing whether or not harassment occurred, her experience of harassment regardless of the perpetrator’s knowledge becomes the relevant legal standard.15 In the context of human rights law, which has endorsed the primacy of the effects of discriminatory practices on the victim regardless of the intent of the discriminator, it is inconsistent to revert to a perpetrator perspective upon entering the domain of sexual harassment. An additional limitation of many legal analyses of sexual harassment stems from the tendency to conceptualize complex and overlapping realities of harassment and discrimination in terms of the separate categories articulated by human rights codes. Nitya Iyer maintains that “there is virtually no consideration of the complex interactions of race, sex, and the various other grounds of discrimination that are so much a part of the lived experience (as opposed to the legal analysis) of discrimination.”16 Thus, the legal bias in favour of isolating one individual act of wrongdoing and fitting it into the legal category of sexual harassment denies the way in which sexism, racism, and other forms of inequality operate simultaneously and are interrelated. Iyer cautions that the racial makeup of the parties involved has a significant impact on understandings of whether and how harassment occurs.17 The legal finding of sexual harassment, however, provides no mechanism for making visible the significance of other dimensions of identity such as race, ethnicity, religion, and language. Further, the individual complaints and litigation model itself institutionalizes a partial response. By focussing on individual cases, it leaves unreported problems of sexual harassment unexamined.18 Rather than focusing on proactively preventing harassment, it provides relief only retroactively and after considerable time delays. Moreover, while the structure of adjudication makes an assessment of credibility part of the process, the consequences of a negative assessment of the victim’s credibility risks constituting a further source of harm. The complainant’s sexual history, credibility, and morality risk becoming part of the legal inquiry. Not only has she been harassed, but she has not been believed; she is implicitly subjected to

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the humiliation of being viewed as making an unfounded complaint for improper pecuniary or other motives. Class, race, and age biases may also affect her credibility. The victim’s integrity is scrutinized, her past sexual history examined, and her case strengthened by conformity to the stereotype of the innocent, chaste woman.19 Feminist concerns articulated in the context of sexual assault and the historical treatment of women plaintiffs continue to be heard in the domain of sexual harassment. Most remedies in sexual harassment cases also reveal an individualistic bias and fail to incorporate the insights of systemic and relational inequalities. They tend to locate the problem exclusively in aberrant individual men rather than in the broader systemic problems. Moreover, as Ratna Kapur argues in her analysis of sexual harassment law, remedies in this domain tend to reinforce conservative sexual morality, coercive state power, and punitive responses – none of which are “especially liberating or beneficial to women.”20 Remedies also tend to provide fairly minimal financial compensation for the complainant. They may include an order for reinstatement, punitive or exemplary damages, a letter of apology, or posting the human rights code in the workplace.21 Remedial orders in sexual harassment cases will need to be much more far-reaching and creative if they are to redress the systemic inequalities that accentuate the problem of harassment. One important exception to my critique of the persistence of the perpetrator perspective in sexual harassment law and the general failure to incorporate a more systemic approach is the broad imposition of employer liability for sexual harassment. In developing an expansive definition of employer liability in an egregious case of sexual harassment involving sexual assault, Brennan v. Canada and Robichaud,22 La Forest J. emphasized the underlying remedial, as opposed to punitive, purposes of human rights legislation. He clarified that since human rights laws (in contrast to criminal laws) are “essentially concerned with the removal of discrimination, as opposed to punishing anti-social behaviour, it follows that the motives or intention of those who discriminate are not central to its concerns.”23 Accordingly, he rejected the relevance of theories of employer liability developed in criminal or quasi-criminal cases: “These are completely beside the point as being fault oriented, for, as we saw, the central purpose of a human rights Act is remedial – to eradicate anti-social conditions without regard to the motives or intention of those who cause them.”24

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Susan Sturm’s important work on equality in the workplace suggests that employer liability for sexual harassment has prompted proactive self-regulatory initiatives for institutional change.25 And yet, even employer-based sexual harassment policies are too often limited to setting up internal institutional mechanisms for individual complaints. Employer policies usually specify that sexual harassment is prohibited and make clear that there may be disciplinary measures taken in the face of individual violations. The emphasis on disciplinary penalties for the perpetrator rather than compensatory remedies for the harassed employee is out of sync with the compensatory focus of human rights law.26 The problem of sexual harassment, pursuant to most employer policies, remains conceptualized as one that is located in individual men rather than in the larger structure or culture of the workplace itself: if we can change the behaviour of individual males, we will eliminate the problem.27 It focuses on an individual complaints approach that implicitly accepts the institutional status quo and is aimed at identifying individual, anti-social, harassing behaviour. By focusing on the perpetrator, sexual harassment is approached as an aberrant individual act, not a systemic problem. Isolated remedies are provided retroactively to individual complainants, but the structural inequities that institutionalize vulnerability to harassment are not corrected. Despite these critiques, there is no question that it remains essential to develop clear sexual harassment policies and definitions to guide individual behaviour and to acknowledge the important role of human agency in the harm generated by sexual harassment. In addition, however, it is important to go beyond the identification of  individual misconduct and examine the institutional context within which sexual harassment occurs. Consequently, an integral dimension of a systemic and proactive approach to addressing problems of sexual harassment should be an inquiry into the institutional context that makes diverse women vulnerable to sexual harassment.

systemic vulnerability to s e x ua l h a r as s m e n t If sexual harassment is symptomatic of systemic inequality, any effective strategy to reduce harassment must take this reality as its starting point. An understanding of the way in which organizational structures, practices, and workplace norms institutionalize sexual harassment is

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critical, therefore, to responding to individual cases of harassment in a more systemic way. A broader analysis of sexual harassment in the workplace can be developed by drawing on the insights of a multilayered contextual approach. It is important to begin this analysis at the micro-contextual level, drawing on the experiential knowledge of those who live it. These narratives of the lived realities of sexual harassment can then be linked to institutional practices and structures that accentuate women’s vulnerability to harassment. In turn, the larger macro context within which harassment occurs provides important insights for crafting proactive and preventative strategies for change. The systemic problems highlighted below, including isolation, sexist and discriminatory supervisory structures, the sexualization of many traditionally female jobs, and the deleterious effects of economic restructuring on women’s job security, recur in the stories women tell about their lived experiences of harassment. Isolation of Women in Traditionally Male Jobs Although not presented as a sexual harassment complaint, the case of Canadian National Railway Co. v. Canada (Canadian Human Rights Commission),28 illustrated very clearly how isolation as the only woman in the workplace makes one more vulnerable to sexual harassment.29 The case involved the organization Action Travail des Femmes and concerned allegations of systemic sex-based discrimination against women at Canadian National Railway Company. Statistics revealed a “markedly low rate of female participation in so-called ‘non-traditional’ occupations at Canadian National.”30 In testimony before the human rights tribunal, one of the women spoke of the difficulties she encountered as the only woman in her workplace: They told me they did not want me there. How did they behave? Well, they tried to confuse me. Instead of telling me things like two or three moves at a time, which is all you have to do, they would tell me about 15 moves in a row … so that I would get confused, or they would tell me to jump off the train at a switch, I would get off at the switch, and they would leave me at the switch, and they would not tell me what they were doing, they would leave me there, or they would just go off on break, and

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they would not tell me they were going on break. Sometimes they would leave me at a switch, or at an engine. They would say “go release the brakes on that engine and wait for my signal”; I would never hear the signal, they would go off and eat lunch and leave me there. They used to do that all the time. Another time, a few guys – we were on break sort of hanging around outside because it was warm out; a few guys jumped me and pretended they were going to rape me. I found that quite offensive. Then, another time, I was bringing a train into the shop – you see, I was not a cleaner anymore; I was signalling, and I was bringing a train into the shop. The boss yelled out something obscene to distract me from my work, and it was very dangerous.31 What is clear from this testimony is the close overlap between sexbased harassment and sexual harassment.32 Moreover, isolation as  the only woman in a traditionally male sphere of employment creates a climate where woman are more likely to experience harassment.33 One of the most pervasive ways in which isolation is accentuated is the presence of pornography – a persistent complaint of women entering male-dominated work sites.34 Pornography in the workplace reflects a norm of an all-male work culture that was historically and still is accepting of pornography. As noted in one human rights tribunal decision, such pornography can contribute to the isolation and denigration of women and thereby constitute sexual harassment: “To tolerate posters of naked women or objects of a sexual nature that might lead to offensive comments about women working in a male-dominated environment poisons the work environment, and the result in this case was that [the complainant]… felt unequal, isolated and belittled in comparison with her male co-workers.”35 Angela Summer’s experiences working in a traditionally male trade included stories about pornography and the difficulties she encountered in trying to alleviate it from the workplace. One time I ripped some porno off a wall, a poster-size crotch shot of a woman, and the apprenticeship coordinator said I should have called him in, but that I had to understand I was in a man’s trade, and that the men shouldn’t have to live by my rules

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… Some other pornographic things have disappeared, and I’ve been told I could be in trouble and sued by the union for taking personal property.36 Again, pornography here is reflective of accepted practices in a predominantly male work and training context. Sexually demeaning and objectifying pictures, graffiti, and personal epithets have also been used to harass specific individual women venturing into traditionally male jobs. As Barbara Shaman, a machinist, commented: At that time there was no other woman working in the shipyards… as an outside machinist. Some of the men were very supportive. And then there were some people that were outright obnoxious, rude. Some would just tell me. “You, broad, go home. You should be home. You shouldn’t be in the shipyard.” People wrote things on the bulkheads of ships. Just outrageous stuff about women. You’d try to find a certain area where you had to go and work, and you’d take your flashlight and all of a sudden you’d shine on this bulkhead, and there would be a comment written there, literally engraved in steel, about – really nasty, derogatory comments about women, women’s bodies, and what some men would like to do.37 Laurene Weins, the first female assistant operator at an Inco nickel refinery in Ontario, became the target of a pornographic graffiti campaign. Obscenities about her were scrawled on elevator, stairwell, and washroom walls.38 Sheila McIntyre’s account of her experience of teaching in a predominantly male law faculty also included the documentation of sexual harassment towards herself in the form of personalized pornography. I had shown up as pornography on the men students’ bathroom walls. I actually surveyed the washroom walls one night. There are hundreds of entries (there are none in the women’s), many of them law-related witticisms or standard excremental humour. What is significant to me is that although about ten male professors are described in insulting ways, they are denigrated for their teaching or their lack of intelligence. Conversely, three women professors are insulted, but only in sexual terms. We are named and cartooned naked, portrayed as sexually repugnant; or we are

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the object of speculation about our sexual activities or orientation.”39 Angela Summer, a plumber, recalled the sexualized personal denigration she was subjected to by one of her supervisors. Every joke he told was either racist or sexist. One night when we were working on the fifteenth floor, I was under a sink undoing a nut with a basin wrench. It was an awkward position, a drag, and I was just starting to get it done when he came over and said to me, “Run down to the basement and get me a couple of copper fittings.” I said, “Okay, in a minute. I’m almost done.” It was gonna take me a half a second to finish that job. He said, “Get off your cunt and go get that.” I was shocked. It just didn’t make sense. Like it made a lot of sense for me to finish what I was doing before I got out from under the sink and ran down to the basement and took twenty minutes. I would have to crawl back under there and get into this position again. I wanted to cry and scream. Finally, I started screaming, “You fucking asshole!” But I didn’t feel any better. He just smirked like he’d gotten what he wanted. It’s so fun to get women fired up.40 In all of these various examples, there is a disquieting reliance on sexual harassment to intimidate, discourage, and keep women out of traditionally male fields of employment. Sexist jokes, pornography, and sexually derogatory comments often operate as a means of telling women that they are transgressing appropriate gender roles. Women are sex objects, not carpenters, plumbers, law professors, machinists, miners. Sexual harassment in this context does not appear as inappropriate flirting; it looks much more like an intentional reliance on the sexual denigration of women to relay a message that women should return to traditionally female occupations and spheres of activity. Sexual harassment often functions, therefore, as a response to the threat women entering non-traditional occupations pose to men’s job security and employment opportunities.41 These experiences reveal that when individual women are alone in an all-male work group, or when their numbers are too small for them to constitute a “critical mass,” they are more likely to be

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harassed. Thus, the isolation of individual women in otherwise all male work teams constitutes a structural source of vulnerability to sexual harassment. Rather than an employer policy simply prohibiting sexual harassment, strategies to ensure that women are not isolated in male work teams are essential. The Action Travail des Femmes case cited above was not a sexual harassment case per se: it was a sex discrimination case. The remedy imposed – an affirmative action program to increase the number of women employed in blue collar occupations – by countering the deleterious effects of isolation would no doubt redress not only discriminatory hiring but also the potential for harassment on the job.42 The importance of a critical mass of women is further illustrated by the Inco mining experience. The non-acceptance and sexual harassment experienced by Laurene Weins, working as one of the only women in a predominantly male section of Inco, contrast with the much more positive experiences of a group of thirty-nine women who were reassigned at the same time from office work to work in the mines. One of the women, Lori Jewell, commented that it was “The best job I’ve ever had … and the men have been fantastic. You couldn’t ask for better. They’re a unique bunch, and the sense of humour is incredible”43 Indeed, some tradeswomen are of the view that once accepted by male peers, women in non-traditional jobs are at less risk of sexual harassment than women in traditionally female jobs, given the more egalitarian relations between coworkers.44 Nevertheless, as one woman who worked in a steel plant in Ontario put it: “Individually deciding to take on those aspects of male culture that offend women often backfires: the only viable long-term strategy is for groups of women to pose an alternative workplace culture, a culture in which women and men can work comfortably.”45 It has also been observed that working in a partner situation with one man who does not have any supervisory authority over his woman partner, as opposed to working with a larger group of men, reduces the likelihood of sexual harassment. As Summer explained, when she worked with only one other man the work environment was much better. As she put it, “[u]sually if I’m working with one guy, even if he doesn’t like me, we both do our best to get along and do the job well … They’re real friendly if I’m the only person they have to talk to, but with another man around, first they talk sports and then they start talking about women and stuff.”46

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Isolation of Women in Traditionally Female Jobs The systemic problem of isolation is also characteristic of many traditionally female jobs. The case of domestic workers illustrates the structural dimensions of isolation as a socially constructed source of vulnerability. Accounts of the pervasiveness of sexual harassment and rape of domestic workers date back to the era of slavery.47 The Canadian context reveals a parallel story of sexual harassment and rape of domestic workers.48 However, sexual harassment of domestic workers is not a phenomenon of distant history. Domestic workers continue to be isolated in individual households, often isolated from friends and family as new immigrants to Canada and subject to immigration regulations and discretion that make them more readily subjected to employer abuse.49 As documented in Makeda Silvera’s book Silenced,50 the live-in requirement for foreign domestic workers accentuates the problem of harassment. She recounts the experiences of Hyacinth, a domestic live-in worker from St. Lucia. I nearly scream out, but he hold my mouth and tell me to be quiet. He smell of alcohol and I don’t know where his wife was, but it was late at night. … He tried to push me down on the bed but I wouldn’t let him, and he had his hand over my mouth so I couldn’t scream. He ask me if I was going to shout, I shake my head and say no, so he let go of my mouth, I remember him telling me that if I had sex with him he would raise my pay. I tell him that I couldn’t do that because he was married and his wife was upstairs. I didn’t know if she was but I just say that. He laugh and ask me what Black girls know about marriage. He said some really dirty things to me. I didn’t know that man had so much filth in him, and a doctor and all … Before I know it he tear off my night clothes and he was with me right there in the bed. The more I fight the more he seem to enjoy it, so after a while I just lie down quiet and let him finish. After he finish he jump off me, spit on the floor and tell me if I tell his wife or anybody he would see that they send me back to St Lucia or that I go to jail. I was really frightened. I really believe that I could get locked up. For what I don’t know. It happened again seven or eight other times. I was just scared to say

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anything to anybody, further I didn’t know where to turn to. I didn’t know anybody here.51 The overlapping racist and sexist dimensions of rape are starkly illustrated in this case. The employer was never criminally charged with sexual assault; nor was any human rights complaint or civil suit filed against him. Eventually, Hyacinth was able to leave her abusive employment situation, but Silvera notes that her experience of violent assault is “not an isolated case.”52 In responding to sexual harassment in a situation like this, in addition to ensuring adequate criminal law responses, it is essential to identify institutionalized sources of domination and to develop policy and legal reforms to address these structural problems. For foreign domestic workers, it is necessary to reform immigration law and policy to make it possible for domestic workers to complain about sexual harassment and assault without risk to their immigration status in Canada. A further strategy would be to provide foreign domestic workers the option of residing outside of their employer’s home.53 Maintaining a separate residence would provide domestic workers with greater control over their own lives and reduce the risks of sexual harassment. Ensuring adequate wage rates to make possible such live-out arrangements would be another factor to consider when developing strategies to reduce the incidence of sexual harassment in domestic workers’ lives. Isolation as a systemic contributor to sexual harassment is also a problem for women in other traditionally female occupations. Clerical and white collar workers can feel a great deal of isolation if the bureaucratic hierarchy within which they work provides no safe outlet for them to raise problems of harassment. At a conference exploring issues of inequality in the university context, a woman of colour explained that “women in double jeopardy positions are put into a situation where they can indeed undergo sexual harassment much more easily because they are isolated.”54 Thus, it is essential to identify how women in traditionally female jobs, especially women subjected to multiple forms of discrimination, are isolated within existing organizational and workplace structures. In contrast to the isolation of individual women in many traditionally-female jobs, the situation of waitresses exemplifies how co-worker solidarity provides an essential source of support in the face of sexual harassment. In her historical account of waitressing

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in the United States, Debbie Cobble observed that waitresses have had a particularly rich work culture “rooted in and nurtured by the strong personal ties that developed among waitresses on the job.”55 She noted that “the work culture waitresses created helped them learn [the]…tricks of the trade. It also sustained waitresses’ positive but beleaguered sense of their dignity as personal service workers.”56 Waitressing work also encouraged assertive behaviour, pride in one’s work, and economic independence.57 It may be that the strong female work culture amongst waitresses makes it more likely for them to resist sexual harassment and seek legal redress. A disproportionately high number of human rights complaints have been filed by waitresses.58 While reflecting the sexualization and institutionalized harassment of waitresses, the significant number of human rights cases involving waitresses may be a testament to their collective strength and solidarity as survivors rather than victims. The Sexualization of Women’s Jobs A further source of institutionalized sexual harassment can be found in the sexualization of many traditionally female jobs. By sexualization, I am referring to the phenomenon of considering it integral to a woman’s job that she be perceived or treated as a sex object. As MacKinnon has noted, what is “[n]ot recognized is that this genderdefinition [of traditionally female jobs] includes sexualization of the woman worker as a part of the job. Until it is changed, this makes sexual harassment systemically inevitable for the masses of women who must take the only jobs society opens to them.”59 Sexualization is a central mechanism of the perpetuation of inequality in malefemale relations. As Thornton has observed, “the corporealisation of women in positions where they are expected to display reason is a very effective mechanism for impugning the authority of the feminine.”60 To understand the sexualized dimensions of many traditionally female jobs, it is important to recall the separate sphere ideology of the nineteenth century, which defined women’s proper place as the private sphere of the family.61 Within that sphere, women were to carry out their primary responsibilities as mothers and wives. A wife was to obey her husband and provide for his daily needs, including his sexual needs. Women’s entry into the labour force occurred

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within the context of the reigning separate sphere ideology. Their participation in paid labour was defined as an anomaly – something that young women would do until they married and had a family. Women’s role in the paid labour force was seen as a socialized or marketized parallel to their familial roles. Thus women’s work involved being a subordinate and servicing the needs of others, and extended to include implicit compliance with the sexual desires of male employers, supervisors, and clients. One of the paradigmatic examples of a job where there is a high risk of sexual harassment is secretarial work. Although there are a variety of stereotypes of the typical secretary-boss relationship, including the “office wife,” “sexy secretary,” and “career woman,”62 Rosemary Pringle, in her book Secretaries Talk, documents the emergence of the “sexy secretary” stereotype in the post World War II period and notes that the office “provided a central site for ‘sexuality’.”63 Youth and physical attractiveness were emphasized as important attributes of the successful secretary. The airline industry provides another example of the sexualization of jobs. In the past, the “airline stewardess” was a job overtly limited to unmarried and attractive young women. Brett Harvey, in her book The Fifties: A Woman’s Oral History, includes the experience of Carla recounting her interview with representatives of airlines in the 1950s: After my interview, which went very well, this interviewer, who was a woman, took me over to the window to look at the roots of my hair to see if I was dying it. Then she asked me to lift my skirt so she could see my legs. I didn’t like that. Plenty of girls didn’t get hired because they had bad legs, or bad complexions – if you had a hair problem of any kind, a weight problem, you wouldn’t get the job. You were supposed to be natural. They were also looking to weed out the troublemakers. They didn’t want girls who were too arrogant or too rebellious. You had to be willing to serve.64 Carla goes on to talk about her experience with other young flight attendants on the job. “The pilots called us the sexy six. They always looked at you in a sexual way.”65 While women were attracted to the airlines because of the glamour associated with the job, the actual

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reality prior to unionization in the 1960s was one of low wages, long hours, and rules explicitly prohibiting married women, pregnant women, or women over age thirty-five from employment as flight attendants. Even relatively recent human rights jurisprudence attests to efforts by airline employers to argue that being a female constituted a bona fide occupational qualification for the position of flight attendant.66 The argument was rejected and indeed the influx of men into flight attendant jobs attests to the socially contingent nature of the sexual definition of flight attendant work. In a similar vein, the work of waitresses contains a high degree of sexualization and harassment by male restaurant owners, cooks, and clients. The tipping system creates a structural power relation between the customer and the waitress that can be readily abused.67 Ironically, the customer-waitress relationship may also give waitresses greater autonomy from their employers in some contexts.68 Sexual harassment from employers and from cooks, however, has been a constant feature of waitressing. One way in which waitresses have resisted the sexualization of their jobs is to bring forward human rights complaints for harassment as well as discrimination complaints for sexist dress codes that reinforce the objectification of women’s bodies. Human rights adjudicators have recognized that it is discriminatory to require women to dress as sex objects, while men are not so required.69 Thornton cautions that sexual harassment laws that reinforce the “construction of women workers as primarily sexed can have the effect of affirming the misogynistic subtext of the social script that the feminine is a dangerous and disorderly force within a sphere of rationality.”70 In her theoretical account of secretaries, for example, Pringle maintains that the “boss-secretary relation is organised around sexuality and family imagery” which appear “to place it outside the modern bureaucratic structures that are a feature of all large organisations.” Yet, contrary to this view, Pringle also writes: “the boss-secretary relation is the most visible aspect of a pattern of domination based on desire and sexuality. Far from being an exception, it vividly illustrates the workings of modern bureaucracies. Indeed, the pervasiveness of the sexualization of women’s jobs challenges the idea that modern workplace bureaucracies are characterized by rational, depersonalized, and asexual social relations.71 Gender and sexuality are central not only in the boss-secretary relation but in all

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workplace power relations.72 Arguably, the sexualization of women’s jobs is not an anomalous phenomenon within the otherwise desexualized and rational bureaucracies of the modern workplace. From this perspective, it becomes apparent that male jobs are also deeply sexualized in modern bureaucracies. Although often unacknowledged, paralleling the invisibility and institutionalization of male norms generally, the image of the aggressive, young, successful male manager is imbued with heterosexist, male sexual undertones. Joan Acker maintains that “a certain kind of male heterosexual sexuality plays an important part in legitimating organizational power.” She explains that what has been referred to as “hegemonic masculinity” is “formed around dominance over women and in opposition to other masculinities.” While varying at different historical moments, she describes the current version of hegemonic masculinity as “typified by the image of the strong, technically competent, authoritative leader who is sexually potent and attractive, has a family, and has his emotions under control.”73 Thus, rather than dealing with a onesided problem of the sexualization of women’s jobs, we are confronted with heterosexist and gendered stereotypes of sexuality that affect both men and women. The effects of sexualization, however, are very different for men and women. Given the location of most women within the institutional hierarchy of the workplace, and the sexual subordination and objectification implicit in the sexualization of women’s jobs, sexualization translates into subjection to harassment in the case of predominantly female jobs but not in the case of predominantly male jobs. Moreover, the sexual stereotypes that pervade male positions of power function to exclude women and men who do not correspond to the dominant male norm from access to those positions. This is particularly noticeable as women enter traditionally maledominated professions and industries in larger numbers. As Acker puts it, “women’s bodies cannot be adapted to hegemonic masculinity: to function at the top of male hierarchies requires that women render irrelevant everything that makes them women.”74 The effects of the sexualization of women in the workplace are not delineated solely by sexual harassment. It has also been suggested that even consensual sexual relations in employer-employee or professor-student relations are detrimental for women.75 While the harm of coercion is not present, there is nevertheless a potential

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undermining of the contribution the woman employee or student can make in her field. She risks being viewed as the girlfriend or wife of the male superior rather than as an individual contributing to an organization on her own terms and by virtue of her own merits.76 What, then, is a systemic response to the deleterious effects of the sexualization of jobs and the sexualization of women in the workplace? One potential strategy would be to endeavour to desexualize both male and female jobs. The skills and tasks associated with a particular job, whether it is clerical work, personal service work, or managerial work, would be understood as distinct from the sexual attributes, sexual orientation, or physical attractiveness of the person doing the job. The fact that many of the jobs that are currently considered female jobs were historically done predominantly by men reinforces the social construction of gender roles. It was not the nature of the job per se but the gender of the person doing it that was critical to its sexualization. Another potential strategy would be to prohibit sexual relations in the workplace altogether, given the risks of abuse, harassment, and heightened economic vulnerabilities when relationships break down. Indeed, Margaret Mead, in emphasizing the importance of cultural taboos in addition to legal prohibitions, suggested a taboo on sexual relations in the workplace.77 Most employers, however, have not taken such an absolutist approach. Instead, the challenge of preventing sexual harassment in the workplace is often articulated by demarcating the line between appropriate social interaction or workplace flirtation and sexual harassment, thereby implicitly endorsing consensual and noncoercive sexual relations. Pringle maintains that “[s]exuality cannot be ‘banished’ from the workplace. Attempts to treat it as an ‘intruder’ are basic to the negative representation of women/sexuality/secretaries. It is by insisting on its presence, making it visible, asserting women’s rights to be subjects rather than objects of sexual discourses, that bureaucracy can be challenged.”78 Even if it may be impossible, or even undesirable, to remove sexuality from workplace relations altogether – where sexuality operates across a power differential or becomes a stereotyped attribute of a bureaucratic function or power – proactive sexual harassment policies should be attentive to the gendered, racist, and heterosexist way in which sexuality in the workplace operates and sexuality should be

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addressed directly and proactively. Although it may be important to allow for sexual interaction in the workplace given the amount of time and energy devoted to paid work and the social significance of workplace communities, the abuse of sexual and economic power in the form of harassment persists and demands a more effective legal response. Thus, while consensual sexual relations between co-workers or workplace peers may be endorsed, we might consider creating a legal presumption or an outright rule that sexual relations across a workplace power differential constitute sexual harassment. Such an approach could entail a legal presumption that could be rebutted, which would put the burden on the alleged harasser rather than the complainant. Alternatively, the legal definition of sexual harassment could preclude any legal justification on the grounds of consent in such circumstances. Those with greater institutional power would then have to take into account the risk of potential liability in the event of a future complaint of sexual harassment. Sexual relationships across a bureaucratic power divide would occur at the peril of the person with more power. Sexism and Supervision in Modern Bureaucracies and the Impact of Economic Restructuring Given the persistence of a starkly sex segregated labour market and the pervasiveness of gender discrimination, women are more likely to be found at the bottom of workplace hierarchies, subject to the supervisory power of male bosses.79 Women employees are more vulnerable to sexual harassment because they often lack economic power in the workplace. This structural imbalance in the workplace constitutes a further source of institutionalized vulnerability to sexual harassment. In the Janzen case, the Supreme Court of Canada took the view that sexual harassment” is an abuse of both economic and sexual power”80 Dickson C.J. went on to note that “in the present sexstratified labour market, those with the power to harass sexually will predominantly be male and those facing the greatest risk of harassment will tend to be female.”81 Thus employment equity strategies that facilitate the upward mobility of women in the workplace are important not only for ensuring equitable job opportunities but also for the critical-mass benefit of reducing sexual harassment.

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To the extent that economic insecurity renders employees more vulnerable to harassment, the effects of global economic restructuring have further accentuated the vulnerability of women, who are increasingly relegated to involuntary part-time employment, low pay, and short-term contract jobs.82 Rather than enjoying a situation of gradual improvement in the status of women in the workplace, we are instead confronted with a deterioration of economic security for all employees, with women in particular and women of colour most seriously affected.83 As Hagen and Jenson explain, “[i]t is not without irony that women, who have always been at the margin of the labour force, now might even replace men as the ‘model worker’, in a situation where employers frequently seek to base their employment strategies precisely in such marginal categories.”84 While employment in low wage, part-time, service-sector jobs without long-term job security may be expanding, it has also been suggested that the labour force is becoming increasingly polarized into a decreasing number of “good jobs” and an expanding number of “bad jobs.”85 The gendered patterns of deskilling, deindustrialization, and technological change need to be taken into account when confronting the problem of workplace harassment. But a systemic approach to the interplay between one’s location on the economic hierarchy and one’s vulnerability to harassment must go beyond simply changing the gender of who is in control. Arguably, the supervisory hierarchies and economic structures themselves should be challenged and restructured to create more egalitarian and democratic workplace relations. It would appear that gendered and sexist patterns of supervision are a longstanding feature of many workplaces. Acker maintains that “[t]o say that an organization … is gendered means that advantage and disadvantage, exploitation and control, action and emotion, meaning and identity, are patterned through and in terms of a distinction between male and female, masculine and feminine.”86 Women in traditionally female jobs, in particular, have been disproportionately subjected to two forms of supervision that intensify harassment and abuse. One form of problematic supervision involves being subjected to the often arbitrary and unchecked supervisory power of an individual male higher up the institutional hierarchy. Overt abuse of supervisory power is also a problem for women in non-traditional jobs, but they tend to work in a team setting which can provide a protective buffer against such abuse. Turning again to

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the boss-secretary example, the unchecked personal nature of the supervisory relationship has been described by Rosabeth Moss Kanter as “one of the most striking instances of the retention of patrimony within the bureaucracy.”87 As she further explains, patrimony exists when “bosses make demands at their own discretion and arbitrarily; choose secretaries on grounds that enhance their own personal status rather than meeting organizational efficiency tests; expect personal service with limits negotiated privately; exact loyalty; and make the secretary a part of their private retinue.”88 Sexual harassment constitutes an abuse of power – both sexual and economic – with a blending of the two when it is used to control and undermine women in subordinate positions in the workplace. To reduce sexual harassment, it is important to protect individual employees from abusive, unfair, and arbitrary supervisory power. Ensuring more objective forms of workplace evaluation, independent evaluations by more than one person, group-based evaluations, and encouraging a team work approach are strategies that would help to protect women from the vulnerability resulting from being subjected to the unchecked supervisory power of individual supervisors.89 A second gendered form of supervision is the disproportionate reliance on dehumanizing and infantilizing forms of supervision in the jobs where women predominate.90 According to Pat and Hugh Armstrong, “[u]nder this kind of close supervision, women are likely to feel both powerless and inferior.”91 The deskilling effects of the economic restructuring of the 1980s and 1990s, as well as technological changes in the workplace, have intensified technology-driven supervisory techniques for both male and female workers. Loss of control and decreases in autonomous decision-making, and increased stress all erode the quality of working life. One of the most critical effects of such intense supervision is the way in which it accentuates economic insecurity. And the more fearful one is about potentially losing one’s job, the more vulnerable one becomes if subjected to sexual harassment. Speaking out about harassment becomes a very risky proposition when a woman feels that she could readily lose her job and be replaced by someone else. A further negative effect of very closely monitored systems of supervision is that they sometimes undermine co-worker relationships. Not only are such supervisory techniques designed to heighten competition between employees but they can operate to reduce time available to develop friendships and solidarity in the workplace. Such group

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solidarity is a very important factor in encouraging women to take action against sexual harassment.

challenging the institutionalization o f s e x ua l h a r as s m e n t To prevent and to remedy sexual harassment, it is critical to understand how vulnerability to harassment is socially constructed by examining how it is institutionalized in workplace schedules and structures that isolate individual women, in workplace cultures that sexualize jobs in a sexist, racist, and heterosexist way, by paternalistic, arbitrary, hierarchical and abusive supervisory practices, and by multiple inequalities that accentuate the economic insecurity of women employees. Individual complaints about harassment, while necessary and important as sources of legal redress, do not provide a forum that encourages challenging, speaking out about, or ultimately transforming institutionalized sources of domination. While it may be possible to expand the parameters of what is examined in the context of an individual complaint to make the larger context and systemic dimensions of sexual harassment relevant and to insist on creative and transformative remedies that transcend the individuals involved in the case, it is important to develop proactive strategies that go beyond the individual complaints approach if we are to achieve inclusive equality in the workplace. Accordingly, those engaged in developing workplace policies to prevent sexual harassment should not only ensure an effective individual complaints mechanism and adequate education on harassment issues but should also examine how vulnerability to harassment is institutionalized within their organizations and begin to make the structural and systemic changes needed to eradicate it. Some of the potential strategies suggested in this chapter include: 1 Ensuring that women in non-traditional jobs are not isolated in all-male work groups and that there is a critical mass of women employed in areas once exclusively the domain of men; 2 Addressing the isolation of women in traditionally female jobs, such as domestic work, and reforming legislative or policy provisions that accentuate their isolation; 3 Confronting the interplay between sexism, racism, and other types of inequality;

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4 Identifying how both male and female jobs are sexualized and dismantling the stereotypes, sexual subordination, racism, and heterosexism of the phenomenon of sexualization; 5 Implementing employment equity to provide equal employment opportunities for women and other underrepresented and socially disadvantaged groups; 6 Developing relationships at work that are not premised on abusive supervisory power but rather on more egalitarian, cooperative, and team-based approaches to work. Indeed, mapping out ways to transform institutional and social relationships to make them more conducive to respect for equality rights is an integral dimension of law. In the chapters that follow I explore two pathways towards more equitable social and institutional relations: caring and democracy. Neither is commonly associated with anti-discrimination and anti-harassment initiatives, yet both contain important lessons for creating the structural and systemic conditions for enhanced protection of equality in a myriad of social and institutional contexts.

5 Caring and Relations of Equality I have come to realize the importance of the experiential because without human experience we will never achieve a true form of equality. In order to understand equality, people must understand caring. Without understanding caring, we cannot understand “peoplehood,” be it in a community as small as a gathering of a few people to something as large as the global community. Each person must be respected for whom and what they are. Only when we all understand caring will we have reached equality. Patricia A. Monture.1

One important dimension of a contextual approach to equality is attentiveness to the relationships of everyday life. Though operating predominantly at the micro and institutional levels, relational issues are relevant as well to macro concerns of equality. In this chapter, I focus on relations of care and explore their relevance to the advancement of inclusive equality. My inspiration for this focus is the passage cited above by Patricia Monture in which she teaches us about the integral connection between caring and equality. These two concepts are not usually linked in law, life, or jurisprudence. Yet such an insight immediately resonates with the underlying theme of a relational approach to legal equality. It requires us to assess not only the concrete effects of prejudice, exclusion, and discrimination but the kinds of human and institutional relations that reinforce and reproduce inequality. Similarly, it suggests that the enhancement of caring in human relationships is an important pathway to social inclusion, respect, and equality.

conceptions of caring It is important to begin by elaborating what is meant by “caring.” Caring describes a way of acting towards others. The first aspect of caring involves caring for the past, for what we already are, for our

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identity, culture, personality, diversity, earth. Caring in this sense entails preserving. To elaborate on what I understand by this, it is helpful to consider Sara Ruddick’s idea of “holding.” Ruddick introduces this concept by illustrating a mother’s interest in preserving the life of her child, describing it as “an attitude governed by the priority of keeping over acquiring, of conserving the fragile, of maintaining whatever is at hand and necessary to the child’s life.”2 For Ruddick, the essence of “holding” is captured by Adrienne Rich’s words on the work of “world-protection, world-preservation, world-repair … the invisible weaving of a frayed and threadbare family life.”3 The idea of holding also conveys a commitment to reassure, to assert the positive of what has already been done, to be still in the midst of a fastmoving world. A second aspect of caring involves commitment to, and the fostering of, development, growth, and change in individuals and groups. This second dimension is more forward-looking. To care is to act, or to decide not to act, to meet the needs and promote the self-development of another.4 Ruddick relates this aspect of caring to the interest of a mother in fostering the growth of her child.5 It contrasts with the conventional meaning of paternalism, which has entailed a kind of protectionism that thwarts the development and autonomy of the person being protected. Though caring is often not taken seriously as a concept that could provide legal or political insights, feminist scholars began exploring its potential relevance to critical theory in the 1980s. The value of women’s caring within the family and social relationships was recognized in the works of feminist psychologists and educators. For example, Carol Gilligan highlighted the importance of caring in human relations in her widely read book, In a Different Voice: Psychological Theory and Women’s Development.6 Gilligan sought to amplify a relational approach to ethical problems and highlighted the importance of interpersonal responsibilities and obligations as opposed to individual rights. Rather than resolving ethical dilemmas through abstract logic based on decontextualized principles, Gilligan examined how such moral dilemmas could also be understood as arising from “a fracture of human relationship that must be mended with its own thread.”7 Feminist philosophers have also incorporated the notion of an ethic of care into their explorations of human ethics and philosophical theory.8 The role of caring has been explored in the context of

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the predominantly female “caring” professions of nursing, social work, teaching, and personal service jobs.9 Feminist legal scholars have relied on the concept of caring to criticize traditional legal doctrines and processes and to inform the articulation of alternative approaches for the historically male-dominated profession of law.10 At the same time, other feminist scholars warned of the dangers of celebrating caring, given the historical conditions of subordination in which gendered conceptions of nurturing emerged. Gilligan’s work, for example, was widely critiqued for reinforcing an essentialist and traditional vision of women.11 Some feminists endorsed the underlying importance of caring as a concept but suggested alternative terminology. For example, Caroline Whitbeck uses the idea of the “mutual realization of people” in her scholarship, reflecting her concern that terms like caring and nurturing evoke a “sentimental picture of women’s self-sacrifice.”12 Susan Moller Okin integrates notions of caring and empathy into a reconceptualized notion of “justice.”13 Joan Tronto, while acknowledging the gendered history of caring, emphasizes the importance of developing a concept of caring that is not linked exclusively to women.14 These concerns reinforced the need to articulate a feminist (rather than a gendered) conception of caring. One important dimension of a feminist conception of caring is linked to a critique of the traditional dichotomy between altruism and self-interest.15 Caring does not embody self-denial according to its feminist re-articulations. It entails taking care of others and oneself. Caring can reinforce one’s sense of individual identity, purpose, strength, and creativity. It celebrates human connection and interdependence as integral and natural to the human condition and individual happiness. According to philosopher Nel Noddings: “Since caring is a relation, an ethic built on it is naturally other-regarding. Since I am defined in relation, I do not sacrifice myself when I move toward the other as the one-caring. Caring is, thus, both self-serving and other-serving … If caring is to be maintained, clearly, the one caring must be maintained. She must be strong, courageous and capable of joy.”16 Similarly, in elaborating an ethic of caring, which Noddings believes is the hope for improving the human condition, she writes: “The ethical self is an active relation between my actual self and a vision of my ethical self as one-caring and cared-for. It is born of the fundamental recognition of relatedness, that which connects me

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naturally to the other, reconnects me through the other to myself. As I care for others and am cared for by them, I become able to care for myself.”17 Even in Gilligan’s work, which is most often associated with the construction of a dichotomy between the “ethic of justice” and the “ethic of care,” the last chapters of her book blur the boundaries by articulating a notion of care that incorporates aspects of justice reasoning. Both ethics are important and together they embody the vision “that self and other will be treated as of equal worth, that despite differences in power, things will be fair … that everyone will be responded to and included, that no one will be left alone or hurt.”18 For Gilligan, the development of moral maturity requires recognition of the importance of caring for oneself in the process of caring for others. As she explains, “the absolute of care, defined initially as not hurting others, becomes complicated through a recognition of the need for personal integrity. This recognition gives rise to the claim for equality embodied in the concept of rights, which changes the understanding of relationships and transforms the definition of care.”19 Thus, the traditional definition of caring – that too often included denial of one’s own needs – must change to include caring for oneself. The prevalent fear expressed by the women in Gilligan’s studies when asked about being considered selfish reveals the difficulty women have in including themselves within the parameters of their caring.20 As Ruddick comments in her analysis of what she calls “maternal thinking,”21 “[m]others are tempted to denial of their own needs simply by the insupportable difficulty of passionately loving a fragile creature in a physically threatening, socially violent, pervasively uncaring and competitive world.”22 Mothering, however, also offers us the most historically pervasive and clear example of caring by those with greater power.23 And as Ruddick insists, “we must work to bring a transformed maternal thought into the public realm, to make preservation and growth of all children a work of public conscience and legislation.”24 In addition to caring for oneself in the process of caring for others, reciprocity of caring is integral to a feminist conception of caring. By reciprocity, I mean being taken care of at the same time that we care.25 It may not always be possible for reciprocity to exist contemporaneously. Parents will care for their children when they are young, but may be cared for by their children when they are old.

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Moreover, our needs and the nature of our dependence on others shift at different times in our lives. By asserting the importance of reciprocity, I do not intend to convey a quantifiable sense of exchange of caring. But in relations of equality, I would expect a fluid shifting of taking care of and being cared for between individuals and/or groups. As Jennifer Nedelsky underlines, dependency is a necessary and positive aspect of human relations and essential to the development of human autonomy and agency. In her reconceptualization of autonomy, she explains that, “dependence is not, as our tradition teaches, the antithesis of autonomy, but a literal precondition of autonomy, and interdependence a constant component of autonomy.”26 She further queries: “If we ask ourselves what actually enables people to be autonomous, the answer is not isolation, but relationships – with parents, teachers, friends, loved ones – that provide the support and the guidance necessary for the development and experience of autonomy.”27 It is also important to clarify that the possibility of being cared for is not the motivation for caring. Caring makes us feel needed in the world; it is a way of making a social contribution to improve the lot of others. It is sustained not by reciprocal caring, which I think is separate, but by responsiveness to one’s own care giving and the recognition of one’s contributions. It is positive reinforcement of the importance of one’s care giving that sustains our caring and gives us the sense of living fully through the act of caring. Caring is also sustained by our sense of social obligation, particularly in the context of family relationships. As Judith Areen has pointed out, “caring does not always begin or end by choice.”28 Finally, caring is sustained by the contributions given by the one being cared for to the learning, richness, and quality of life of the one caring. To engage in the kind of caring I have described, it is essential to have knowledge about the needs, concerns, interests, fears, and hopes of others – “knowledge that comes from others.”29 This differs from the treatment of others according to stereotypes created and perpetuated by the dominant person/group. Recognition of the particularized and concrete needs of others requires empathy, which Lynne Henderson defines as a “way of knowing” that involves “understanding the experience or situation of another, both affectively and cognitively.”30 She suggests that, “empathy can contribute to meaning and interpretation and enlarge the universe of legal discourse and understanding.”31 While it is easier to empathize with

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people who are similar to ourselves, Henderson maintains that we should still attempt to develop an empathic understanding of the experiences of those who are different from ourselves, while also acknowledging the limits of such understanding.32 When the gulf created by our differences is substantial, caring should entail respecting and responding to the needs of the one being cared for even in the face of non-understanding or uncertainty. Caring, then, involves responding to the needs of others based on efforts to be attentive to and empathize with their needs and desires as they define and articulate them. It is important to contrast attentiveness to the particularized needs of others at the core of caring from the approach often used to assess the needs of others in dominant moral, political, and legal theory. A Tronto has noted, contemporary moral theory tends to presume that “the needs of others … reflect the understood needs of the thinking self if only he or she were in another’s situation. In contrast, caring rests on knowledge completely peculiar to the particular person being cared for.”33 For example, in Taking Rights Seriously, Ronald Dworkin writes: “Governments must treat those whom it governs with concern, that is, as human beings who are capable of suffering and frustration, and with respect, that is, as human beings who are capable of forming and acting on intelligent conceptions of how their lives should be lived. Governments must not only treat people with concern and respect, but with equal concern and respect.”34 Dworkin’s ideas resonate with the normative ideals of caring to the extent that they address the quality of the relationship between the government and an individual to ascertain whether equal concern and respect have been accorded. His approach, however, is significantly different insofar as it relies on an abstracted calculus of adequate concern and respect rather than a more contextualized understanding of unique needs and difficulties. Dworkin appears to ascribe the needs of the abstracted individual to real human lives. In this regard, his work draws on the persuasive but abstract Rawlsian concept of justice.35 Rawls develops his theory of justice by elaborating a hypothetical “original position” in which individuals decide on the distribution of wealth permissible in society without knowing where on the social and economic hierarchy they will be located. It is this decontextualized and ahistorical notion of the “original position” that Dworkin suggests is “well designed to enforce the abstract right to equal concern and respect.”36

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To appreciate the different approaches, it is helpful to draw on Seyla Benhabib’s distinction between the “standpoint of the generalized other,” which “requires us to view each and every individual as a rational being entitled to the same rights and duties we would want to ascribe to ourselves,”37 and the “standpoint of the concrete other,” which “requires us to view each and every rational being as an individual with a concrete history, identity and affective-emotional constitution.”38 The latter approach is the most germane to caring as it opens up the possibility of a deeper understanding of others’ particularized needs based on their own unique experiences and history. A further insight in Benhabib’s work is the importance of discovering the needs and concerns of the “concrete other” through communication. The process of moral reasoning she is contemplating is not a “hypothetical thought process, carried out singly by the moral agent or the moral philosopher, but … an actual dialogue situation in which moral agents communicate with one another.”39 This corresponds to Mari Matsuda’s view that “[t]he technique of imagining oneself black and poor in some hypothetical world is less effective than studying the actual experience of black poverty and listening to those who have done so.”40 It is also echoed by Nitya Duclos, who explains that the challenge of confronting diversity “is not to see our own reflections in their eyes, or to imagine what we would want if we were they, but actually to pay attention to what they are saying about who they are.”41 Adopting the standpoint of the “concrete other” through attentiveness and empathy engenders responses that are particularized and not necessarily universal or consistent. We cannot predict in advance, nor formulate rigid rules to govern, the nature of caring. For Noddings, “[t]o care is to act not by fixed rule but by affection and regard.”42 This appears as a contradictory and yet familiar theme in law. Though we tend to associate law with rules, we have recurrent examples of the need for flexibility in, and exceptions to, the application of the rule of law. The historical division between law and equity reverberates with this tension. So, too, do the dichotomies between law and fact, judge and jury, verdict and sentencing, law and policy, formalism and realism.43 Even within the rule-based side of these dichotomies, we see the tension recurring. Certainly, it is widely accepted that justice demands a willingness to relax rules to accommodate particular cases. Thus, while we may be able to formulate rules or principles that will promote caring, caring requires

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the ever-present possibility of deviation from rules to accommodate individual needs and changing needs and circumstances. The experience of parenting provides important insights to developing and enhancing caring in a changing world, given the need for parents to constantly revise their approaches and strategies to childrearing as the child grows and changes. Jean Baker Miller has written that “women live change.”44 To acknowledge the constancy of change is to accept the impossibility of complete control or certainty, two central features of modern scientific inquiry. This acceptance shifts the objective from gaining control over people and nature to being receptive to, listening to, responding to the needs of others and nature. Monture refers to the belief among her people that “we cannot control our natural environment. We cannot master the universe.”45 Before discussing the relevance of caring to the elaboration of an inclusive conception of legal equality, it is important to note two potential sources of confusion. First, financial support of others may be an indicator of care or a sense of obligation, but such support does not necessarily fit my definition of active personal care. Noddings suggests that genuine caring is sometimes confused with what she would call caretaking or financial support. Thus, she maintains, we often inaccurately think that women are taken care of by men if the latter are providing their economic support.46 Secondly, the kind of caring I am describing begins from a position of equality or greater power, not subordination. The work done by those who are subordinated to servicing the needs and desires of those who dominate is not the kind of caring I want to endorse. While it does share certain similarities with my definition of caring, to the extent that it entails being sensitive to and responding to the needs of another, it occurs at the expense of self-denial and the denial by others of the needs and dignity of the person caring. For this reason, I refer to it as servicing not caring. The idea of separating servicing from caring underscores the importance of understanding the role of power and inequality in relations of care.

t e m p o r a ry a n d p e r m a n e n t i n e q u a l i t y A critical bridge to linking equality and caring is provided by Jean Baker Miller in the distinction she formulates between temporary and permanent inequality in her book Towards a New Psychology

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of Women.47 Baker Miller explains that permanent inequality is rooted in domination and subordination and differs from temporary inequality in the nature of the power relationships upon which it is based. Temporary inequality may characterize relationships such as the parent-child or teacher-student relationship. According to Baker Miller, the parent or teacher has certain abilities or qualities such as “emotional maturity, experience in the world, physical skills, a body of knowledge, or the techniques for acquiring certain kinds of knowledge” that she or he teaches, or “imparts,” to the child or student. The objective of these relationships is to make the child or student an equal – to achieve “full parity.”48 It is equally important to acknowledge that the parent or teacher has much to learn from the child or student.49 What is critical with respect to relations of temporary inequality is that they are “based in service” to the less powerful person.50 In contrast, in relations of permanent inequality, the service relationship is reversed and entrenched: individuals from subordinated groups serve individuals from dominant groups. The group basis for oppressive service relations is a further critical dimension of relations of permanent inequality. As Baker Miller explains, “[D]ominant groups usually define one or more acceptable roles for the subordinate. Acceptable roles typically involve providing services that no dominant group wants to perform for itself (for example, cleaning up the dominant’s waste products). Functions that a dominant group prefers to perform, on the other hand, are carefully guarded and closed to subordinates.”51 This form of inequality is the most pervasive and the most damaging to individual lives and group identity. A historical example is the master-slave relationship. It persists today, for example, in the treatment of individuals from minority groups, in male-female relations, in employer/supervisor-employee relations. The dominant group is served. The inequality is permanent. Moreover, relations of permanent inequality are reproduced by ideologies that define contingent hierarchical social relations as “natural” and by the threat or reality of the assertion of physical and psychological violence.52 Both types of inequality involve relationships based on power imbalances, and yet they reveal dramatically different ways of using power. In the case of temporary inequality, power is used to nurture the human development of the less powerful; whereas relationships of permanent inequality entail the use of power to entrench and

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perpetuate domination and subordination.53 A parent-child or teacher-student relationship that is true to the principles of temporary inequality (and not skewed by the pervasiveness of permanent inequality) focuses on helping the child or student to discover and develop her or his own unique strengths and abilities. It does not impose one path which the child or student must follow. Audre Lorde, a black feminist scholar, discusses parenting in ways that resonate with temporary inequality. It is as hard for our children to believe that we are not omnipotent as it is for us to know it, as parents. But that knowledge is necessary as the first step in the reassessment of power as something other than might, age, privilege, or the lack of fear. It is an important step for a boy, whose societal destruction begins when he is forced to believe that he can only be strong if he doesn’t feel, or if he wins … The strongest lesson I can teach my son is the same lesson I teach my daughter: how to be who he wishes to be for himself.54 The temporary inequality model contemplates fluidity in any hierarchical structure and often consists of relationships between individuals from the same social groups. The momentum in a relationship of temporary inequality is towards equality. The terms for equality under a model of permanent inequality are fundamentally different. Instead of securing greater equality for many, in institutions characterized by permanent inequality, only a small minority of individuals from subordinate groups manage to, in effect, leave their group(s), by emulating, and becoming (to the extent possible) part of the dominant group. Once within the dominant group, the individual remains an exception, since individuals from dominant groups have a long-term interest in ensuring that their needs continue to be serviced by individuals from groups that remain subordinate. The social structure is pyramidal and is based on a permanent structural inequality in which a privileged minority is positioned at the top of the pyramid and a majority below. The only way to retain the permanence of this structure is to allow only token individuals from below to gain access to the privilege at the top. This structural reality has generated criticism of equal rights strategies that fail to challenge societal structures of inequality.55

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Baker Miller’s categories are most helpful for understanding the connection between equality and caring. She reveals the centrality of caring to relationships of temporary inequality, and the absence of caring in relationships of permanent inequality.56 Moreover, she expands the parameters of intellectual inquiry to make, for example, the parent-child relation relevant to our understanding of problems of inequality in society at large.57 Baker Miller’s analysis, however, does not always function according to her ideal types. She warns that the pervasiveness of permanent inequality “tends to overwhelm the ways we learn to operate in the first kind [of relationships of temporary inequality]. The second type [permanent inequality] molds the very ways we perceive and conceptualize what we are doing in the first, most basic kind of relationships.”58 Rather than promote the equality of the less powerful through teaching and caring, there is a recurrent risk that the relationship of inequality will become entrenched. This risk is probably greater when the caregiver is not being affirmed in other aspects of her or his life, which can lead to a desire to perpetuate the dependency and inequality of the person being cared for as a source of self-affirmation. In parenting, this might involve a difficulty in letting one’s child develop in her or his own unique way. In teaching, this might entail a need to keep a student in a subordinate position as a way to affirm the abilities of the teacher. Perhaps the most destructive example in teaching is sexual harassment. The concepts of temporary and permanent inequality, however, still leave certain dimensions of inequality unexplored. First, there are inequalities rooted in potential frailties or health impairments of old age or of illness at various times in one’s life. There is a temporary character to this inequality to the extent that it is a lifecycle event rather than a permanent determinant of one’s status. We all age; we all get sick or are injured at times in our lives. Still, it does not fit readily into the permanent versus temporary equality paradigm.59 Secondly, there are differences in mental, physical, psychological, and emotional capacities between individuals. We have various strengths and weaknesses. These differences underlie our human interdependency. Ideally, we make a social contribution in accordance with our strengths. We rely on others to fulfill needs we cannot or choose not to meet ourselves. Some weaknesses give rise to other strengths. These inevitable and important differences in abilities

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become problematic only when certain abilities are unfairly valued more than others or when an individual becomes totally defined by particular characteristics, socially constructed as disabilities.60 Thirdly, some of the most serious problems of permanent inequality revolve around racial, ethnic, cultural, gender, and class group differences. It is important to emphasize that relations of permanent inequality will not be eradicated by the dominant person attempting to teach the subordinate person his or her ways of being. This would imply paternalism, imperialism, and an implicit undermining of the skills, culture, differences, and values of subordinated groups. The lesson of relations of temporary inequality to the promotion of human flourishing is to create the conditions under which individual and group development can occur as defined by the individual and group. What is needed in the face of group differences is an end to the coerced servicing of the needs and interests of dominant group(s) to allow persons from subordinated groups to protect the integrity of their differences and to realize their potential. Relations across group-based diversities must be relations of equality.

i d e n t i f y i n g i n s t i t u t i o n a l i n e q ua l i t i e s in the asymmetries of caring The law is implicated in the institutionalization of the absence of caring and the widespread existence of relations of inequality. At the same time, legal norms can contribute to more inclusive processes and promote relations of equality. Where there is caring by a person with greater power, as in the case of the mother-child relation, or between individuals or groups with equal power, we often see the kind of human flourishing that creates, recreates, sustains, and nurtures relations of equality. This is caring as “a way of strength.”61 Caring in the context of relationships of temporary inequality, however, represents a tiny fraction of human relations and is overwhelmed in large part by relations of permanent inequality –- servicing of the needs and interests of those with more power – and denial of the needs and interests of those with less. While there are strong conceptual justifications for linking caring to equality, the connection is currently almost entirely absent from legal doctrines on anti-discrimination and equality rights jurisprudence.62 The lack of any current juridical connection between caring and equality, however, does not mean that it should not exist. Legal

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scrutiny of relations of care is a component of other doctrinal provisions – most obviously the “duty of care” in tort law and in the law on fiduciary relations.63 Indeed, focusing on human relations is consistent with the traditional project of law. Law is deeply implicated in creating, interpreting, rationalizing, applying, and enforcing rules of social interaction between individuals and groups.64 If we think about the major institutional relationships reflective of everyday life, it is apparent that human relations generally fall under the rubric of familial, market, or bureaucratic relations. To what extent might relations of care enhance equality in these different social contexts? With respect to the family, feminist work has documented the subordination of women and abuse of children within patriarchal families.65 Family relations have often involved relations of permanent inequality between women and men, which are bolstered by an ideology of male supremacy and the reality of male violence. In minority communities, however, the family may not be a source of oppression but rather a site of resistance to the assimilationist pressures of a dominating external culture.66 Moreover, it is also within the family that we find caring relations of temporary inequality between parents and children. A parent’s caring for a child is one of the most important and recurrent pathways to equality across generations and cultures. Market relations have also been the subject of extensive analysis in terms of problems of inequality. There have been numerous critiques of the individualistic conception of freedom and equality that is presumed to characterize market relations – a presumption that sacrifices substantive equality in the name of formal equality and individual liberty.67 Individuals are accorded a legal entitlement to equal treatment in the face of real disparities in need, power, property, wealth, and privilege. Legal protection, enforced ultimately by the power of the state, is accorded to contractual arrangements regardless of the realities of poverty, discrimination, and desperation that shape their content. Property entitlements determine the dynamics of the relations of permanent inequality between those who have property and those who must sell their labour to survive.68 Although analyses of the obstacles to caring within market relations are much less prevalent than those that concern families, Joan Tronto maintains that an ethic of care is fundamentally incompatible with market relations: “The paradigm of market relations, of exchange,

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involves putting one’s own interests first. It involves the assertion that one knows one’s own interests best … It involves reducing complex relationships into terms that can be made equivalent. None of these premises is compatible with attentiveness.”69 Moreover, although familial and market relations have often been studied separately, an important insight of feminist scholarship has been an insistence on their interconnectedness. The dynamics of inequality and the absences of caring in each sector affect the other.70 While Tronto does not go so far as to advocate the abolition of market relations, she raises concerns about the possible incompatibility between the principles of caring and exchange.71 Caring, however, may not be inconsistent with continued exchange relations in all contexts. It may be necessary to distinguish between barter, exchange between independent commodity producers, market relations under conditions of relative equality, and market relations under conditions of extreme inequality. The latter situation raises the most serious problems of permanent inequality where profit trumps human needs, promotes the preeminence of materialistic values, and justifies institutionalized violations of human dignity. A third important mode of social relations is the increasingly pervasive bureaucratic nature of social institutions, which is replacing, infusing, and transforming traditional market and familial relations. The underlying principles that inform bureaucratic modes of organization are antithetical to relations of equality and the promotion of human caring.72 Bureaucracies tend to objectify human concerns as social problems. The personal, individual, human is extracted from what becomes conceptualized impersonally as a social problem. With the transformation of individual concerns into social problems comes the creation of objective, rationalized rules and procedures for addressing problems. It becomes more difficult to exercise the flexible, non-rule driven, and intuitive dimensions of caring. The rules are devised to respond to a problem as experienced by a “generalized other,” not a “concrete other.”73 They institutionalize and systematize discrimination against those “concrete others” who do not fit the mould of the “generalized other.” The breakdown of caring within bureaucracies is also related to the necessity of assuming particular institutional roles and carrying out the tasks associated with those roles. There is considerable pressure to conform to institutional expectations instead of considering whether a particular practice or policy is right or wrong, or whether things could be done

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differently. Moreover, the institutional roles and associated tasks within bureaucracies are arranged hierarchically. It is through the unquestioned, functionalist performance of one’s role that one advances up the bureaucratic structure, thus providing a further disincentive to question bureaucratic roles or the division of labour. This functionalist performance contributes to the gradual pre-eminence of bureaucratic objectives over social or humanist objectives. While it is possible and necessary for some individuals to move up the bureaucratic hierarchy and assume positions of bureaucratic power, the majority of individuals within an organization stay at the bottom. For those who are promoted in the bureaucracy while being encouraged and mentored in the process, the inequality within the bureaucracy is not permanent.74 Still, for the vast majority, bureaucratic relations of permanent inequality mean little upward mobility and continued servicing of the needs and interests of those with power and privilege within an institution. Despite her critique of bureaucracy, Kathy Ferguson insists that bureaucracies are not static and unchangeable. Rather, she theorizes bureaucratization as “a process, a moment in a dialectic of domination and resistance that must be constantly reproduced. It generates oppositions, tensions, and counter trends, which the defenders of the bureaucratic order, those who benefit or who believe that they benefit, must constantly seek to overcome.”75 This idea of counterhegemonic resistance accords individuals agency as change-makers. It contests a monolithic conception of the status quo, highlighting instead counter currents, resistance, alternatives to the dominant institutional practices, and affirms partial agency to contest relations of permanent inequality. Nonetheless, fear of losing one’s job, access to education, or government benefits makes challenging bureaucracy difficult, as does the energy and extra work required. Attentiveness to the presence or absence of caring in social institutions, therefore, may shed light on sources of group inequality and patterns of domination, thus making it possible to correct both the manifestations of inequality and its reproduction. Integral to the remedial approach I am suggesting is a conception of equality that is not limited to promoting the access of a minority of individuals from subordinated groups to the upper echelons of various institutional hierarchies. Such an approach depends on continued inequality and in effect, the objective of equality is transformed into superiority and dominance for some. To create a more inclusive equality, we need

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instead to begin the process of changing social structures and institutions that are premised on permanent inequality. This does not mean that our social institutions will be devoid of any hierarchy. Nor does it mean that everyone will be equal all of the time. Rather, it means that institutional and social inequalities will be fluid and temporary, linked to individual learning and development instead of groupbased patterns of social disadvantaging and exclusion. To develop long term and inclusive relations of equality, it is necessary to promote institutional and social relations of temporary inequality and eliminate relations of permanent inequality. As Patricia Monture teaches us, caring is a vital dimension of this process.76

6 Democracy and Relations of Equality Low participation and social inequity are so bound up with each other that a more equitable and humane society requires a more participatory political system. C.B. Macpherson1

In this chapter, I explore the wisdom of C.B. Macpherson’s insight, assessing its relevance beyond the political domain into the social and economic institutions of everyday life, such as the workplace, educational institutions, and the family.2 As in the case of caring, the fostering of more democratic social relations in these institutional contexts would enhance equality rights and contribute to more inclusive citizenship. Moreover, the affirmation of substantive equality in Canadian equality law and legal recognition of systemic discrimination have effectively opened up a juridical space for linking democracy and equality rights more overtly – a space that resonates with a vision of equality as inclusion.

conceptions of democracy There is a vast literature on democratic theory – and vastly divergent understandings of democracy. Nevertheless, one important idea, shared by theorists of democracy, is the notion that every individual is entitled to an equal say in democratic outcomes and ought to be accorded equal recognition as a citizen of the community. Differences in wealth, property, class, power, and privilege do not entitle individuals to greater input or to more than one vote as citizens.3 This fundamental starting point is premised on a normative acceptance of the basic idea of equality. Although we are accustomed to the idea of one citizen–one vote with respect to representative democracy and government, in most

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social institutions, democracy is not the predominant model for decision-making. Instead, workplaces, schools, and families usually function according to a hierarchical model in which individuals with greater power or property have greater decision-making authority. An obvious question arises regarding the significant divide between these two domains: why have we not incorporated the basic foundations of political democracy, including equal citizenship, into the institutions of everyday life, such as the corporation, the private and public sector workplace, educational institutions, and even the family?4 While indirect or representative democracy may be essential to the task of governing a large polity, more direct forms of democratic participation are feasible in the context of small-scale governance.5 Democratic theorists have speculated that greater democratic participation in the institutions of civil society would result in increased participation in the political process. In her important early work on participatory democracy, Carole Pateman notes that industrial democracy was premised on the idea that “it is industry that holds the key that will unlock the door to a truly democratic polity.”6 Similarly, Amy Gutman and Dennis Thompson suggest that democratic participation in the institutions of everyday life help create the conditions for effective citizen participation in political life. In their view, “unless citizens have the experience of reasoning together in other institutions in which they spend more of their time they are not likely to develop either the interest or the skill that would enable them to deliberate effectively in politics.”7 Democratic participation and deliberation is learned through the practice of democracy. Democratic theorists also debate how democracy works in practice. Two contrasting visions of democratic politics recur in the literature.8 One vision, sometimes referred to as “interest group” democracy, emphasizes that democracy involves a balancing of competing and conflicting interests in the public domain. Each individual or interest group advances its own self-interest in the hope of securing maximum individual gain and politics entails the mediation of conflicting private interests. In contrast, a more classically republican vision of democracy contemplates the collective pursuit of the common good through public debate, participation, and deliberation.9

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It is this second vision of democracy that would appear to hold the most promise for the promotion of more equitable social relations within the institutions of civil society. Iris Marion Young describes this model of democracy as “a process that creates a public, citizens coming together to talk about collective problems, goals, ideals, and actions. Democratic processes are oriented around discussing this common good rather than competing for the promotion of the private good of each.”10 Participation in institutional democratic processes not only helps to ensure better and more informed decision-making for good governance and social justice, it also functions to enhance psychological well-being and a sense of belonging, thereby reinforcing an inclusive conception of citizenship.11 Substantive equality becomes an objective for the entire community, not simply a matter of concern for those historically excluded. Inequality is understood to harm everyone, including those apparently privileged by it.

tensions between democracy a n d e q ua l i t y While democratic participation within social institutions may intuitively seem to promote greater inclusion and equality, there remain some important critiques of democracy, which place it in direct conflict with equality. First, there is the fundamental problem of formal exclusion from the democratic polity. This exclusion can arise in the context of large political communities, workplaces, or various social and educational institutions. In addition, there is the reality of de facto exclusion from democratic deliberation even in contexts where formal exclusion has been redressed. Finally, there is the tension between majority rule and minority rights. How do we address diverse and conflicting group-based interests and concerns in a manner that respects democracy and equality? Exclusion from Democratic Participation Problems of exclusion from participation in democratic governance undermine its promise as a pathway to greater equality. Exclusion may occur directly and be formally inscribed in institutional practice or legal rules. It may also occur indirectly in the subtle and yet

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pervasive ways in which de facto exclusion from democratic deliberations takes place in diverse societal contexts of inequality. Formal exclusion occurs in the political sphere through the legal definition of citizenship. In the political domain, formal voting entitlements and democratic rights are generally provided to all citizens, and denied to non-citizens, including permanent residents and visitors to a country. Within the institutions of civil society, however, the experience and definition of exclusion is broader. Who counts as a citizen of the university, profession, corporation, trade union, school board, family? In many contexts, it is only those situated in the upper echelons of an institutional hierarchy who are treated as institutional citizens and accorded decision-making powers, while most remain excluded from any democratic participation in the functioning of the institution. Even in institutional contexts where more democratic governance occurs (i.e. in labour unions, university governance), there continue to be fundamental problems of exclusion and often inadequate inclusion of historically underrepresented groups. If there is no person of colour, no person with a disability, no woman, no Aboriginal person, no gay man or lesbian, or no working class person at the table or in a meeting, the perspectives and concerns of those groups risk being overlooked. To the extent that an institution lacks representation of diverse communities, finding such representation must be a top priority. Interim measures could include community representation on committees or councils to remedy the absence of a full range of voices in internal democratic dialogues. Beyond formal or express exclusion, there may be other informal structural constraints on participation in institutional decision-making. Most theorists of direct democracy acknowledge that there must be a relatively high level of political and economic equality as a prerequisite to independent and autonomous participation. Indeed, political theorists have long emphasized the need for relative economic equality between citizens as a mechanism for enhancing political participation.12 Rousseau’s ideal citizens, pursuant to his male-dominated vision of political life, were politically equal, independent, economically interdependent, and cooperative – a society of “small, peasant proprietors.”13 In the institutional context, economic and social power imbalances between, for example, students and professors, tenured and non-tenured professors, employees and employers, create structural constraints to equal participation. These structural impediments should be addressed through mechanisms such as

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independent labour unions, job tenure, and inclusion of fair process guarantees to facilitate effective participation. Young has identified further “exclusionary implications”14 linked to seemingly inclusive models of deliberative democracy. Young maintains that many theorists of deliberative democracy often fail to recognize how other forms of social power or alternative ways of speaking can affect participation in public deliberations. According to Young, cultural and gender inequities can arise if the deliberative norm privileges more dominant members of an institution. She suggests, for example, that deliberative democracy privileges certain styles of speech, such as speech that is “assertive and confrontational” more than speech that is “tentative, exploratory, or conciliatory.”15 Similarly, she suggests that for many, “the social power that can prevent people from being equal speakers derives not only from economic dependence or political domination but also from an internalized sense of the right one has to speak or not to speak, and from the devaluation of some people’s style of speech and the elevation of other.”16 Rejecting the idea that deliberation is “culturally neutral,” she endorses what she calls a “communicative democracy” that would welcome and encourage diverse ways of speaking and communicating in the public domain, emphasizing physical interaction, gestures, rituals, emotions, and narratives. For democracy to advance equality, therefore, issues of exclusion, both formal and de facto, must be addressed. Extending democratic citizenship to those formerly excluded, and developing mechanisms that value and render structurally possible the participation of all, are essential to the pursuit of equality through democracy. Majority Rule and Minority Rights Beyond the problem of exclusion is the problem of majority rule, which remains a central premise of democratic decision-making. Majority rule is not always attentive to minority rights.17 One response to this tension highlights the idea that democracy is more than simply majority rule, and that implicit in a democratic polity is a concern with minority interests, the rule of law, fairness, and a baseline of fundamental rights. These substantive concerns protect individuals and minorities against the risk of majoritarian abuses in democratic decision-making.18 As elaborated below, the legitimacy

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of constitutional judicial review in a democratic polity is often justified in these terms. Building upon this basic idea, some scholars draw a distinction between procedural versus constitutional democracy. While the former accords priority to majoritarian outcomes provided basic democratic processes are respected, the latter requires that democratic outcomes not violate certain substantive fundamental human rights and civil liberties. As Gutman and Thompson explain, “[p]rocedural and constitutional democrats agree that their disagreement turns on the question of whether democratic procedures have priority over just outcomes or just outcomes have priority over democratic procedures.”19 They maintain that deliberative democracy, which embraces “ongoing discussion of moral disagreement in everyday life,”20 provides a way out of this standard dichotomous analysis of democracy. For Gutman and Thompson, the objective of deliberative democracy is provisional moral agreement and the safeguarding of mutual respect between citizens with different moral views. It incorporates a few basic procedural and substantive requirements. Procedurally, it is to be governed by the principles of reciprocity, publicity, and accountability. Substantively, it must respect basic principles of liberty and equality. A second response to the apparent conflict between majoritarian rule and minority rights suggests that ensuring democracy in the institutions of civil society allows minorities to become majorities in more localized decision-making. Carol Gould maintains that taking differences seriously entails a radical increase in opportunities for democratic participation beyond the political public domain, requiring participation in the various social, cultural, and economic institutions of civil society.21 She suggests that in “smaller-scale contexts of participation, difference can be directly expressed by the individual or group and concretely recognized in the social interactions among people engaged in the common activity.”22 As explored below, the decision-making role accorded to linguistic minorities in the management and control of minority language education, as well as the emergence of Aboriginal self-government arrangements, provide concrete examples of allowing minorities to become majorities in more localized decision-making. A third response advocates structural mechanisms to ensure inclusive democracy. For Young, “commitment to political equality entails that democratic institutions and practices take measures explicitly to include the representation of social groups whose perspectives would likely be excluded from expression in discussion

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without those measures.”23 Young emphasizes that any theory of democracy must be attentive to group-based inequalities and identities. As she cautions: We cannot develop political principles by starting with the assumption of a completely just society, however, but must begin from within the general historical and social conditions in which we exist. This means that we must develop participatory democratic theory not on the assumption of an undifferentiated humanity, but rather on the assumption that there are group differences and that some groups are actually or potentially oppressed or disadvantaged.24 Young maintains that specific institutional mechanisms should be put in place to ensure the effective representation and recognition of socially disadvantaged or oppressed groups within society.25 For Young, “full and free expression of concrete needs and interests under social circumstances where some groups are silenced or marginalized requires that they have a specific voice in deliberation and decision-making.”26 It is important to note, however, that special group representation rights are sometimes thought to be in tension with the promotion of a common public good that transcends individual or narrow group interests. According special recognition to groups, moreover, raises complex issues of group identity and representation. How do we define group identity or identities? How do we ensure attentiveness to overlapping group identities? Who is entitled to represent the group? Scholarship on group representation and democracy highlights the risk of assuming individuals with a common group identity will necessarily express the same needs and interests when, in reality, a distinction exists between the representation of groups and the representation of ideas or political perspectives.27

d e m o c r acy a n d e q ua l i t y r i g h t s How do the theoretical insights about democracy impact upon legal understanding or equality rights? Two important consequences flow from recognizing the connection between equality and democratic participation in social institutions. First, the meaning of legal equality is enlarged. Equality cannot be limited to securing access for a minority of individuals from under-represented groups to the upper

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echelons of an unchallenged institutional status quo while leaving the lives of the majority unchanged. Equality becomes a much more transformative project, engaging social institutions in making systemic change to practices, policies and relationships. Second, by engaging historically excluded institutional actors to create the conditions for equality, the role of human rights law and adjudication changes in significant ways: judges and adjudicators no longer have a monopoly on interpreting and applying the substance of equality rights. By introducing remedial measures that restructure institutional decision-making to secure greater participation by those historically disadvantaged by discrimination, internal mechanisms are put in place for ongoing correction of systemic inequalities. The role of law transcends its perceived limitations, weaving itself into the very fabric of institutional relationships as institutional actors share the task of identifying systemic inequalities and devising institutional policies, measures, and practices to remedy them. Despite the transformative potential of democracy to enhance our legal approach to equality, the connection has not been widely recognized. There has been some explicit linking of democracy and equality in the constitutional arena. In statutory human rights claims involving discrimination and harassment in the workplace, schools and educational institutions, and in access to public services, however, one finds very little overt discussion of democratic theory. Apart from Justice La Forest’s reference to the workplace as a “micro-democracy” in an important sexual harassment decision, most adjudicators and judges in anti-discrimination cases do not examine the link between the absence of democratic participation and equality.28 And yet, an inquiry into the presence or absence of mechanisms for democratic participation in the public and private institutions of everyday life would be of enormous assistance both to diagnose problems of systemic inequality and to structure solutions to remedy it.29 To the extent that institutional processes exclude democratic forms of participation in decision-making, they are problematic from an equality perspective. A more explicit linking of these concepts would be significant and positive. Democracy as a Constitutional Value In the constitutional domain, one finds a much greater recognition of the link between democracy and equality. The fundamental concept

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of substantive equality is measured in relation to “self respect, self worth, physical and psychological integrity and empowerment.”30 Substantive equality is recognized as being undermined when individuals and groups are “marginalized, ignored, devalued,” and reinforced when all individuals and groups are accorded “a place” in society.31 These ideas and concerns resonate very closely with the discourse of deliberative and participatory democracy. In delineating some key contextual factors for discerning a violation of substantive equality, moreover, the Court has noted that “it is relevant to consider whether the distinction restricts access to a fundamental social institution, or affects ‘a basic aspect of full membership in Canadian society’, or ‘constitute[s] a complete non-recognition of a particular group’.”32 Again, the resonance with democratic participation is apparent. In Reference re the Secession of Quebec,33 the Supreme Court of Canada identified democracy as “a fundamental value in our constitutional law and political culture.”34 While democratic principles inform the basic political structure of Canadian democracy, the Court has repeated on a number of occasions that democracy means more than simply majority rule.35 A democratic polity must ensure respect for fundamental individual and minority rights as foundational principles. Indeed, the Supreme Court has endorsed the idea that democracy is “fundamentally connected to substantive goals” and that key social values are “inherent in the notion of democracy.”36 As Dickson C.J. wrote in R. v. Oakes:37 The Court must be guided by the values and principles essential to a free and democratic society, which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.38 The express references to human dignity, equality, respect for cultural and group identity, and participation in social institutions resonate with an inclusive conception of democracy. Moreover, according to the Court, democracy “in any real sense of the word cannot exist without the rule of law,”39 and it is through the institution of judicial review that the rule of law is secured. The argument was put succinctly by Iacobucci J. in Vriend v. Alberta:40

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Although a court’s invalidation of legislation usually involves negating the will of the majority, we must remember that the concept of democracy is broader than the notion of majority rule, fundamental as that may be … Democratic values and principles under the Charter demand that legislators and the executive take these into account; and if they fail to do so, courts should stand ready to intervene to protect these democratic values as appropriate.41 In R. v. Mills, the Court expressed similar views, explaining that “constitutional democracy is meant to ensure that due regard is given to the voices of those vulnerable to being overlooked by the majority.”42 According to the Court, “constitutionalism can facilitate democracy rather than undermine it, and … one way in which it does this is by ensuring that fundamental human rights and individual freedoms are given due regard and protection.”43 Attentiveness to inequitable participation in political decisionmaking is also apparent in the judicial concern to protect “discrete and insular minorities” whose substantive needs and interests risk being overlooked because of their exclusion from participation.44 In Andrews v. Law Society of British Columbia, Wilson J. wrote, “Relative to citizens, non-citizens are a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated.” 45 She goes on to explain how they are particularly vulnerable, quoting John Stuart Mill’s insight that “in the absence of its natural defenders, the interests of the excluded are always in danger of being overlooked.”46 This concern with democratic deficits is used to justify or legitimize more searching judicial review. These jurisprudential developments, however, focus on the connection between democracy, the rule of law, and human rights vis-à-vis the state. They are important because they delineate a conception of democracy in which concern for minority rights and inclusion of the voices of the vulnerable are central. At the same time, these cases do not explicitly make a link between equality and the need to revise non-egalitarian tendencies in the undemocratic social institutions of civil society. Exclusion from Democratic Voting Rights A more explicit constitutional connection is made between equality/ non-discrimination and democracy in Charter cases where individuals

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or groups are directly excluded from democratic participation. For example, in Corbiere v. Canada (Ministry of Indian and Northern Affairs),47 the legislative exclusion of band members living off the reserve from voting in band elections was constitutionally challenged. Fewer than one-third of the Indian band members lived on the reserve. The Court was unanimous in concluding that the law discriminated against non-resident band members. Justice McLachlin wrote: “The impugned distinction perpetuates the historic disadvantage experienced by off-reserve band members by denying them the right to vote and participate in their band’s governance. Band members have important interests in band governance, which the distinction denies.”48 In a concurring opinion, Justice L’Heureux-Dubé noted that “the functions and powers of the band council have important significance for the lives of off-reserve band members. Denying them voting rights when band leadership is chosen through a system of democracy affects significant interests they have in band governance.”49 The denial of democratic participation rights constituted a substantive violation of equality rights. Another decision that emphasizes the importance of democracy is Sauvé v. Canada (Chief Electoral Officer), where a divided Court affirmed the voting rights of federally sentenced prisoners, relying predominantly on s. 3 of the Charter, which establishes the right to vote for every citizen of Canada.50 Of significance is the Court’s commitment to “upholding and maintaining an inclusive, participatory democratic framework within which citizens can explore and pursue different conceptions of the good.”51 The Court went on to find that the exclusion of prisoners from voting rights violated “the principles of equal rights and equal membership embodied in and protected by the Charter.”52 Thus, democratic participation was directly linked to fundamental concerns about equal citizenship and participation. These cases illustrate the potential for discrimination issues to arise in cases that expressly concern voting entitlements and democratic participation issues in the political sphere. The interface between equality and democracy, however, is much deeper. Group Rights, Self-Governance and Substantive Equality One of the important substantive goals linked to democracy is recognition of cultural and group identities through the promotion of self-government. The Supreme Court has expressly acknowledged that democracy “accommodates cultural and group identities.”53 In

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turn, self-governance can contribute to the realization of substantive equality. Responding in part to the tension between minority rights and the majoritarianism of democratic politics, self-governance allows a group to shift from minority to majority status. Power is devolved to a local community that may then govern in a way that is attentive to the community’s particularized needs and identity. Two examples provide important clarification of how self-governance may reinforce substantive equality of historically disadvantaged groups within the Canadian polity. First, there is the example of minority language communities, especially the situation of francophone minority communities outside Quebec. Second, there is the example of Aboriginal peoples and their struggle to reclaim self-governance as a pathway to equality. The general equality guarantees of the Charter are not the focus of the constitutional struggle for substantive equality within these communities. Nevertheless, the experiences of these communities are instructive of how democracy is linked to the equality rights of oppressed collectivities. The educational rights for minority language communities in section 23 of the Canadian Charter provide an entitlement to publiclyfunded primary and secondary school instruction.54 The Supreme Court has emphasized the remedial purpose of these constitutional protections in securing the survival of linguistic minority communities across Canada. Minority language educational institutions have been identified as essential for effective resistance to linguistic and cultural assimilation. Moreover, educational policy must be attuned to the specific needs of minority language education: The use of objective standards, which assess the needs of minority language children primarily by reference to the pedagogical needs of majority language children, does not take into account the special requirements of s. 23 rights holders … Section 23 is premised on the fact that substantive equality requires that official language minorities be treated differently, if necessary, according to their particular circumstances and needs, in order to provide them with a standard of education equivalent to that of the official language majority.55 A commitment to substantive equality for minority language rights holders is a starting point for understanding the Court’s further

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conclusion that the linguistic minority community should have effective input into educational policy and direction. Chief Justice Dickson first articulated the importance of ensuring effective participation of linguistic minorities in the management and control of minority language education in his judgment in Mahe v. Alberta.56 The case arose in Edmonton where a group of francophone parents sought the establishment of a French-language public school that would be administered by a committee of parents within an autonomous French school board. A key issue in the case was the degree of “management and control” that was to be accorded to the minority language community. In endorsing the importance of control by the minority linguistic community, Chief Justice Dickson noted that “minority language groups cannot always rely upon the majority to take account of all of their linguistic and cultural concerns. Such neglect is not necessarily intentional: the majority cannot be expected to understand and appreciate all of the diverse ways in which educational practices may influence the language and culture of the minority.”57 Dickson C.J. concluded that the effective protection of minority language education rights required that “minority language parents possess a measure of management and control over the educational facilities in which their children are taught.”58 The general approach of the Court to minority language education in Mahe was reinforced in Arsenault-Cameron, which involved a dispute over the establishment of a French elementary school.59 As in the Mahe case, and consistent with the need for structural protections for minority rights, the Court concluded that the language minority should have control over “those aspects of education which pertain to or have an effect upon their language and culture.”60 The Court in effect mandated that minority language parents be accorded decision-making powers because they had special insight into the needs of the minority community. As the Court explained, “representatives of the majority cannot be expected to appreciate the ramifications and consequences of the choices made by the minority in this regard.”61 In a similar vein, it emphasized that “minority language parents and their representatives are in the best position to identify local needs when it comes to defining the relevant areas.”62 Although the Court acknowledged that minority language school board decision-making is not immune from error or challenge, it nevertheless affirmed the experiential knowledge that comes from a

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history of language rights violations. As the Court put it: “Empowerment is essential to correct past injustices and to guarantee that the specific needs of the minority language community are the first consideration in any given decision affecting language and cultural concerns.”63 In the domain of Aboriginal rights, an important connection exists between greater substantive equality, preservation of cultural identity and democratic self-governance.64 Yet, Canadian law and policy remain inadequate in forging this connection. In interpreting the Aboriginal rights entrenched in the Constitution in 1982, the courts have not provided any clear articulation of the connection between democratic self-government and greater equality for Aboriginal communities. Rather than affirming a general entitlement to political autonomy and self-governance, the Aboriginal rights protected by the Constitution have been defined on a case-by-case basis and limited to practices and customs that can be linked to historical traditions within a specific Indigenous community prior to European contact.65 Unlike the minority language cases, where there is an express acknowledgement of the need to use constitutional law to redress historical wrongs, in the Aboriginal context, the harms of colonization risk being overlooked and erased by the articulation of rights in terms of customs existing prior to contact with European colonizers.66 Of significance in terms of Aboriginal rights in Canada as well is the 1996 Royal Commission on Aboriginal Peoples (rcap).67 The Commission had an expansive mandate to examine the situation of Aboriginal peoples across Canada and to propose solutions and remedies. The final report articulated the following four principles as guidelines towards a “renewed relationship” between Aboriginal and non-Aboriginal communities: “mutual recognition, mutual respect, sharing and mutual responsibility.”68 According to the Royal Commission, mutual recognition has three dimensions: “equality, co-existence and self government.”69 The rcap Report also outlined “matters of justice,” including the recognition of Aboriginal sovereignty and the return to them of their lands as well as greater empowerment of “Aboriginal communities so they become politically and economically self-sufficient.”70 Although the recommendations of the Report have yet to be realized, there is a growing commitment within diverse Aboriginal communities across Canada, to political autonomy, economic and social well-being through self-governance.71

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Contesting Systemic Discrimination Through Democratic Practices As noted above, in the statutory domain of anti-discrimination and anti-harassment law, the potential for democratic theory to contribute to equality is much less explicit than in the constitutional domain. Nonetheless, it can be found to a certain extent by reading between the lines of judicial decisions. One foundational concept in this regard is systemic discrimination. The systemic lens has the potential to reveal how inequality is produced and reproduced within particular institutional and human relationships. In cases involving systemic and adverse effect discrimination, there has been judicial recognition of the need to prevent such discrimination in the future by ensuring greater attentiveness to the needs and concerns of socially disadvantaged groups and individuals in the formulation of rules, standards, and policies. Thus, in the gender discrimination case involving forest fighters in British Columbia, (Public Service Employee Relations Commission) v. BCGSEU,72 the Supreme Court of Canada outlined significant procedural requirements for setting workplace standards: Employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible.73 In other words, when developing workplace standards employers have a duty to ensure that any disparate effects on particular individuals and groups be assessed proactively in terms of human rights obligations. Though not framed in terms of participatory democracy, the decision moves us in that direction by reinforcing the importance of participation and consultation in the setting of workplace standards and policies. Courts have also recognized the importance of ensuring that there is a “critical mass” of individuals from groups historically excluded

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from social and economic institutions. The objective behind this effort is not only to secure more equitable representation but also to facilitate the ongoing self-correction of historical patterns of exclusion.74 In effect, the critical mass idea attests to judicial recognition of the importance of including those whom have been excluded and harmed by discrimination as institutional change-makers. Again, though not using the language of participatory democracy, courts have acknowledged the need for the participation of historically excluded groups in the processes of institutional change. Legal remedies for systemic inequality, therefore, should take into account the effects of discrimination and the ongoing need to reform the system from within by involving historically excluded and disadvantaged groups in decision-making processes. Legislative reform has given more overt expression to the connection between equality and democracy. There are a series of provisions that mandate some form of democratic participation and consultation in employment and pay equity laws, and occupational health and safety protections. For example, the federal Employment Equity Act requires employers to “consult with its employees’ representatives” to ensure collaboration in the “preparation, implementation and revision of the employer’s employment equity plan.”75 While the language of the statute speaks primarily in terms of consultation and explicitly distinguishes consultation from co-management, it does provide limited recognition of the importance of drawing on the insights and knowledge of employees in crafting employment equity programs. Litigation has occurred with respect to these kinds of legislative initiatives to ensure that the legislative promise of consultation and participation is implemented.76 Indeed, more equitable participation in institutional decisionmaking has been a longstanding and recurrent demand of those at the bottom of institutional hierarchies. In the workplace, unionization and collective bargaining have historically provided mechanisms for autonomous worker participation in determining the conditions of their working lives. Collective bargaining has also been endorsed as an important potential pathway to greater equality at work.77 In the educational domain, students are often at the forefront of institutional change, seeking increased democratic participation in universities, colleges, and schools. These developments attest to the relevance of democratic theory to institutional, social, and political processes for the attainment of

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greater equality. It would be a positive development if these concerns were systematically included in legal analyses of equality rights. Certainly, many societal institutions, especially the workplace, do not include participatory democracy as an important component of the institutional culture. Nor is an environment of non-discrimination conceptualized as being dependant upon democratic social relations within the institutions of everyday life. But this understanding is precisely what is needed to ensure inclusive equality. Jurisprudential history reveals an opportunity in human rights case law to argue for institutional transformation as a pathway to greater equality. My basic thesis remains that in order to remedy inequality and prevent its reproduction, the legal system must facilitate and promote democratic participation in the myriad social institutions of everyday life. By bridging equality and democracy, our understanding of both the processes for achieving equality and the meaning of equality itself are transformed. Democratizing access to equality rights justice ensures that equality is relevant to the lives of everyone within an institution, not simply those seeking access to the upper echelons of the institutional hierarchy. Ensuring equality becomes a matter of transforming institutional hierarchies – eliminating them in some instances in favour of more egalitarian institutional structures, disrupting them in others by making them more temporary, open to challenge, and non-conventional in whom they recognize as leaders. Equality is manifest through inclusion and belonging – in the care that individuals take to make a difference in the lives of others and of future generations, in their recognition that they are making a  valuable contribution, and in the respect with which they are treated. Beyond a radically revised substantive understanding of equality, the democratization of social institutions would drastically reduce dependence on formal law procedures for enforcing human rights norms – procedures that are often difficult to access by the most vulnerable groups in society. By ensuring that these groups are more broadly involved in the defining of institutional policies and procedures, the risk of discriminatory disparate effects would be reduced. In the face of experiences of exclusion and inequality, internal processes themselves would provide mechanisms for change.

7 Conclusion: Toward Inclusive Equality Relationships matter every bit as much as rights. Citizenship means having rights, but it also means belonging. Belonging in schools and universities, in places of work and places of worship, in politics, art and commerce; belonging in family, community and nation. Our rights as equal citizens, arguably, should get us in the front door. But once we are inside, our citizen’s place of belonging assures us (or ought to) that we will be valued and heard. Catherine Frazee1

To identify equality rights violations and begin structuring longterm remedies to patterns of under-representation, exclusion, and harm, it is critical to scrutinize public and private decision-making and the institutional processes that create and reproduce inequality. By examining the relational dimensions of systemic inequality, we can begin to challenge the absence of consultation, respect, caring, democracy, and mentoring in a whole range of institutional and social contexts. Such process-related problems help to explain the persistence of inequality and exclusion over time. A better understanding of systemic processes will also allow us to imagine ways to restructure human and institutional relationships to address the spiraling effects of social, economic, political, and psychological exclusion. Three key dimensions of this restructuring process are explored in this concluding chapter. Each is critical for advancing the substantive and procedural components of inclusive equality. First, inclusive equality requires reinforcing individual agency, while taking into account the systemic and structural constraints on that agency. How might we utilize our power as individuals or as members of social groups to challenge exclusion and marginalization? What power do we have to contest the inequitable treatment of those around us?

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How is our individual or group agency limited by social, institutional, cultural, and economic constraints? How can we ensure individual accountability for exclusion, discrimination, and harassment? Second, inclusive equality requires nurturing solidarity across group-based differences. Respect for diversity means that we act to promote the needs and interests of those whose lives are different from our own. Community identity across differences is forged when we act in solidarity with those whose fates we do not share. Solidarity provides a vehicle for collective action that makes possible what individuals acting alone cannot achieve. And individual choices that engage us in taking a stand on inequalities or injustices in the lives of others are the basis upon which solidarity is affirmed or denied. Beyond questions of individual agency and solidarity, critical questions remain about the role of the state and our collective institutions of democratic government. Thirdly, therefore, an inclusive vision of equality requires governments to assume significant responsibility for creating conditions that enhance equality, taking into account the ways in which state law intersects with individual and collective agency, informal law, private power, and transnational and international law. Affirming the responsibility of governments to act to prevent and remedy inequality is simply another way of speaking about our collective responsibilities to ensure fairness and inclusion. How can we ensure that state-based initiatives enhance respect for fundamental human rights? How might we reframe legal rights and responsibilities so as to take into account both formal and informal legal regimes and the effects of globalizing private power?

r e i n f o rc i n g pa rt i a l ag e n cy: e m p ow e r m e n t a n d vo i c e One critical objective of feminism is to bolster and reinforce women’s agency – their empowerment rather than their victimization. In an important article on divergent approaches to feminism and law, Kathryn Abrams traces the shift from a victimization discourse in early feminist legal theory to an anti-victimization discourse that went too far in ignoring continuing realities of gender-based oppression.2 Abrams formulates the concept of “partial agency” – an idea that reinforces the ways in which women are survivors rather than victims but still acknowledges the systemic, social, and structural

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constraints on women’s individual agency. For example, as feminist work on domestic violence has revealed, there is a heightened risk of violence when women exercise agency by trying to leave an abusive spouse.3 To reinforce the capacity of women to leave abusive spouses, our laws and policing policies should provide heightened protection at this more dangerous time. It is not sufficient to simply recognize victimization through doctrines such as the battered spouse syndrome.4 Such a response is retroactive, and fails to reinforce a woman’s efforts to change her life before it is too late. If a vulnerable and abused woman exercises agency and leaves her spouse, our laws and legal remedies should reinforce her capacities in this regard and provide her with extra security, counselling, and economic, emotional, and physical support. Concerns with reinforcing agency, while recognizing and challenging the structural and systemic constraints to its exercise, resonate with the policy turn towards empowerment as a strategy for social transformation. “Empowerment” has been defined as “the process of awareness and capacity-building, which increases the participation and decision-making power of citizens and may potentially lead to transformative action which will change opportunity structures in an inclusive and equalizing direction.”5 At the international level, empowerment approaches, defined in terms of strategies to “increase disadvantaged populations’ control over their lives,”6 have emerged as an important component of poverty reduction. Challenging the dominant paradigm, a “‘top-down’, state-centered approach,”7 an empowerment model goes beyond formal law reform or access to courts and tribunals to embrace changes in the actual material conditions of everyday life. As in the case of agency, empowerment has been widely endorsed; yet it has also been critiqued when it is advocated without adequate attention to the social and economic conditions in a globalizing world community that often make it very difficult to put into practice.8 Reinforcing individual agency and community empowerment are also integrally connected to our understanding of citizenship. Ruth Lister has articulated an expansive conception of inclusive citizenship that includes civil, political, economic, and social rights. In highlighting the interconnections between social inclusion and political citizenship, she emphasizes agency as “the defining character of citizenship” since “to act as a citizen requires first a sense of agency, the belief that one can act; acting as a citizen, especially collectively, in turn fosters that sense of agency.”9 Lister also highlights

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the importance of feminist citizenship theory and its rejection of the traditional public-private divide’s “association of citizenship with the public sphere.”10 Of particular significance are feminist efforts to examine how caring constitutes citizenship. From this perspective caring is considered “an expression of social citizenship responsibilities”11 that operate in multiple and intersecting domestic, local, and global spheres. In terms of equality theory, the shift away from a discourse of victimization has important implications. As a legal strategy, highlighting victimization is often seen as central to proving discrimination and harm. In traditional legal complaints processes, the more one claims victimization, the more one can claim damages. While it is important to name and acknowledge genuine experiences of victimization, it has been suggested that discrimination law “requires individual complainants to accept a submissive posture,” a process that “de-emphasizes both the larger structures of power within which discrimination occurs and the victim’s own resilience and capacities.”12 At the same time, however, the act of seeking legal redress marks a transition from being a victim to becoming a survivor. Indeed, the continued victimization of the most vulnerable and marginalized, which prevents their making this transition, may explain their failure to seek legal redress in the face of abuse and violation of their rights.13 It is important, therefore, to rethink the traditional litigation model to ensure that it recognizes the realities of victimization and the resilience of survival, and provides structural remedies that help to prevent inequalities before they occur. The importance of individual agency and empowerment underscores the need to go beyond a litigation paradigm to ensure that equality norms guide decision and policy making in ways that prevent or thwart the cyclical reproduction of exclusion and discrimination. And it is critical to ensure the participation of individuals from historically excluded and socially disadvantaged communities and groups in such institutional processes if proactive and preventive strategies are to be effective.

s o l i da r i t y a n d r e s p e c t : c r e at i n g a c u lt u r e o f e q ua l i t y Individuals cannot change the world on their own. Throughout history and in a diverse range of social contexts, it has been through collective action that society has been transformed. Social movements

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for equitable inclusion, reinforced through a legal regime conducive to the protection and promotion of equality rights, are essential for the remedying of social exclusion and inequality.14 Naila Kabeer identifies what she calls “horizontal citizenship” – a sense of unity forged in the relationships “between citizens” in contrast to the more traditional “vertical citizenship” demarcating the relationship between the individual and the state.15 She notes that “where the state has proved consistently unresponsive to the needs of its citizens, it is through the collective action of citizens, particularly those who have been disenfranchised by the prevailing regime, that a more democratized vertical relationship can be established or restored.”16 Solidarity is described by Roberto Unger as “our feeling of responsibility for those whose lives touch in some way upon our own and our greater or lesser willingness to share their fate. Solidarity is the social face of love.”17 It resonates with relations of care – taking an ethic of care and responsibility beyond family and friends. Solidarity, in effect, begins when we become informed about the concerns, harms, and apprehensions of others, and is completed when we speak or take action to respond. Speaking at a forum on disability rights, Catherine Frazee explained that solidarity is built through the “deliberate acts of coming together, across our differences, because what we share is more important than how we differ … As disabled people advance toward a place of robust citizenship, solidarity demands that we leave no one behind.”18 Angela Harris has elaborated the importance of solidarity in her work on the intersection of critical race theory and feminist legal theory.19 She critiques feminist scholars who attempt to submerge differences between women by identifying some universal dimension of gender-based oppression. Instead, she insists on building a united feminist movement across significant differences through action and solidarity in each other’s struggles. As Harris explains, “black women can help the feminist movement move beyond its fascination with essentialism through the recognition that wholeness of the self and commonality with others are asserted (if never completely achieved) through creative action, not realized in shared victimization.”20 These insights regarding relations of solidarity can be applied to current debates about national identity and cultural diversity. One of the central tasks of promoting a culture of equality is the articulation of an inclusive vision of shared community identity

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that respects group-based differences (of both majority and minority groups) while resisting the marginalization of minority groups. In asserting a shared community identity, some advocate an anachronistic approach that is static and excludes minorities, erasing their presence by treating them as exceptions or tokens. The dominant community identity is defined in terms of a historical notion of tradition that is resistant to change. Social cohesion is premised on cultural, religious, and language homogeneity. The possibility of a culturally homogeneous public, however, is defied by the growing multicultural face of society – evident even within individual families. A cultural identity based on the congealed traditions of the past is destined to atrophy. Preservation of groupbased identities means ensuring the conditions for their continued transformation and dynamic self-definition. As Habermas explains, “cultures survive only if they draw the strength to transform themselves from criticism and secession.”21 Thus, an alternative vision for a shared community identity eschews the possibility, and even the desirability, of discovering some kernel of commonality or sameness. Rather, it emphasizes the possibility of a shared community identity across our differences. As Young emphasizes, “radical politics must begin from the existence of modern urban life” and it “must develop discourse and institutions for bringing differently identified groups together without suppressing or subsuming differences.”22 One potential way of creating a sense of common identity, therefore, lies in nurturing and insisting on relations of solidarity. A commitment to solidarity provides a pathway to respecting and promoting groupbased identities, and ensuring that no one group is accorded primacy in determining public policy, community action, or national identity. Diversity can then be acknowledged as a positive attribute of modern society rather than a threat to social cohesiveness or the cultural survival of any particular group.

sustaining public responsibility f o r e q ua l i t y r i g h t s Both of the above strategies, the reinforcing of individual agency and the promotion of solidarity through horizontal citizenship, should not be understood to limit the responsibility state actors have to prevent and redress systemic inequalities. Despite important empirical observations about the significance of non-state actors in the

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implementation of human rights, governments must continue to assume a central role in securing inclusion and advance more effective protection of equality rights. This central role is even more critical in the face of privatization and globalization. While Canada continues to have a fairly well developed human rights infrastructure, it is important to assess how shifting conceptions of the role of the state have affected our understandings of public enforcement over the past three decades. Beginning in the late 1970s and into the 1980s and 1990s, neoliberal critiques ushered in an era of decline in the social welfare state and a restructuring of state regulation. As global competition intensified and government debt increased, government policies shifted towards privatization, the dismantling or downsizing of state agencies and institutions, the contracting out and delegation of formerly state-based functions to non-state entities, an increased focus on individual responsibility, the revival of conservative moral values, and a belief in an individual conception of formal equality.23 In the domain of anti-discrimination law, this policy shift translated into fiscal restraint and reduced resources for human rights commissions at a time of intensified social inequality. The result was increased backlog and significant time delays in the investigation and processing of individual complaints by human rights commissions. The shift to proactive employment and pay equity initiatives reflected regulatory restructuring to delegate anti-discrimination enforcement responsibilities to non-state entities (i.e. large employers). In jurisdictions where this occurred, however, human rights commissions were nonetheless accorded responsibility to oversee proactive employment equity initiatives, albeit with sometimes limited resources. In their comprehensive review of government funding and policy of human rights commissions in Canada, R. Brian Howe and David Johnson conclude that “all governments in Canada placed their human rights systems under fiscal restraint during the 1980s and 1990s.”24 In addition, the 1990s witnessed a political retreat from employment equity in some jurisdictions (e.g. Ontario),25 and a reduced belief in state regulation as a panacea for society’s problems. Neoliberalism created a more difficult public policy terrain for equality rights advocates, reflected in the debates about the legitimacy of affirmative action and the wisdom of interfering with market-based wage rates through pay equity initiatives. Critiques of the Supreme

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Court’s substantive equality jurisprudence and the human rights discourse associated with the Charter also emerged in the 1990s.26 In addition to critiques from the right, there were critiques from the left over access to justice in human rights cases. Individual complainants, community organizations, and social movements raised concerns about the inadequacies of an anti-discrimination complaints process controlled and administered by human rights commissions, the difficulties involved in confronting systemic problems through the complaints process, the risks of denials of access to justice as a result of the gatekeeper or screening function of human rights commissions, and the lack of preventive and educational work by state agencies. The weak enforcement mechanisms for proactive equality rights initiatives were also critiqued by those actively engaged in trying to secure equality in the workplace.27 These critiques of human rights laws and government agencies occurred in a social and economic context of growing inequality, with the gap between good and bad jobs widening as economic restructuring increased the pool of contingent, vulnerable workers without full-time or secure employment. These accentuated inequities were most acutely experienced by racialized and immigrant communities, women, persons with disabilities, older workers, and young workers – groups specifically protected by anti-discrimination laws. In response to growing concerns about the inadequacies of the role of human rights commissions, public inquiries were held in the 1990s and early in the new century in a number of jurisdictions to review their effectiveness, the adequacy of human rights legislation, and difficulties in the complaints process.28 Despite the fact that additional funding and resources to improve access to human rights complaints procedures and statutory remedies were included in many of the recommendations in the wake of these public reviews, some governments instead took action to dismantle human rights commissions and reduce the role of the state in human rights enforcement. During this period, there was also litigation challenging the delays in, and the capacity and neutrality of human rights commission processes.29 Legislative reform ensued in some jurisdictions; in others, human rights commissions reconfigured their complaint processes and priorities without formal legislative reform. Although the basic human rights commission model is still the predominant model all across Canada, it has been restructured and

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challenged in some jurisdictions. For example, in British Columbia, the response to the backlog in human rights investigations was to abolish the human rights commission process and replace it with a system of direct access to a specialized human rights tribunal, with limited public assistance for investigation and legal representation. This development prompted widespread concern and criticism.30 A somewhat similar approach has also been adopted in Ontario, albeit with more extensive legal aid assistance for complainants.31 The Ontario Human Rights Commission was not abolished as in B.C., but reconfigured into primarily a human rights policy and education agency, which may also intervene in the adjudicative process in complex systemic discrimination cases. The previous screening function of the Commission was eliminated, as was full access to a publicly-funded investigation process as well as a Commission lawyer. Individual complainants now retain complete control over their complaint, but also a greater burden regarding legal representation, investigation, and fact-finding. Extensive recommendations for reform were advanced at the federal level in the Promoting Equality Report.32 As in British Columbia and Ontario, a more direct access model was proposed in response to the difficult problem of delay, with legal aid being provided by the state. Subsequently, the Canadian Human Rights Commission restructured its complaint process without legislative reform. As outlined in its Looking Ahead: Consultation Document,33 the new approach to its role and functions includes a complaints triage system, a reduced role for Commission lawyers in individual cases that do not have systemic dimensions or raise complex questions of law, and a greater emphasis on alternative dispute resolution techniques.34 The insights of modern private sector management have been relied upon to secure greater efficiency and reduce backlog and systemic delays. Such managerial techniques may not, however, be well suited to ensuring substantive human rights justice. There is a risk that efficiency and caseload management become the predominant end, rather than the attainment of equality at work. In Quebec, despite its innovative establishment of the first permanent specialized human rights tribunal, the jurisdiction of the human rights tribunal has been progressively restricted, as the courts channel human rights claims into other adjudicative bodies, including workers’ compensation (for sexual harassment), labour tribunals (for maternity and parental benefits, pay equity and psychological

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harassment), and grievance arbitration boards (for discrimination claims in unionized workplaces).35 This reduced jurisdiction has been highly controversial in Quebec, with some maintaining that problems of inequality, harassment, and discrimination should be incorporated into more timely and accessible legal venues, while others critique the erosion of the primacy of the human rights tribunal as the key adjudicator of equality claims.36 All across Canada, overlapping jurisdiction for equality-related issues has been increasing and has prompted concerns about the extent to which non-human rights administrative adjudicators are sensitive to the evolving complexities of anti-discrimination law. Since human rights legislation has been characterized as quasiconstitutional, concerns have been expressed about the risk of legal protection for equality being weakened if it is adjudicated outside specialized human rights tribunals. At the same time, the importance of integrating human rights and equality principles into all forms of adjudicative decision-making has been widely endorsed. In the constitutional and international human rights domain, there is no equivalent to the human rights commission public infrastructure.37 One important human rights infrastructural initiative, established in 1994, was the Court Challenges Program, a funding program that provided support to individuals and groups seeking to challenge the constitutionality of federal laws, programs, and policies on the grounds of discrimination. 38 Such an initiative was innovative because it engaged the government in funding challenges to its own laws, programs, and policies. While seemingly contradictory, the Court Challenges Program was forward looking in its recognition that there must be equitable access to the courts. Indeed, governments should fulfill their obligations to facilitate such access, even when it means that their own laws, policies, or programs could be subject to constitutional challenge. When the government decided to eliminate funding for this highly successful program in 2006, there was public protest that such a decision reflected a neo-conservative bias in federal policy and constituted a step backwards in the pursuit of access to human rights justice in Canada. It is significant that at a time when national human rights institutions are emerging in many countries, Canadian human rights infrastructures have been undergoing significant retrenchment and restructuring, both in the statutory and constitutional domains. While it is relatively easy for governments to proclaim their commitment

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to equality, it is more difficult to act upon those commitments to ensure the effective enjoyment of equality rights for the most vulnerable and historically disadvantaged groups in society. To confront the economic, social, and political inequalities facing a growing segment of society today, we cannot be afraid to develop new and creative forms of state intervention that take into account both formal and informal law, and the critical role of community organizations in advancing human rights. In this regard, we may well need to rethink the intersections between public and private domains, while ensuring a continued commitment to state responsibility for the effective and creative enforcement of equality. How, then, do we sustain public responsibility for equality rights in a post neo-liberal regulatory context and in an era of global economic and political uncertainty? Public policy initiatives to enhance the effective enjoyment of equality and non-discrimination need to be developed in ways that reinforce individual agency and build upon horizontal civil society commitments to solidarity. Rather than assuming that government-funded infrastructures, such as human rights commissions, tribunals, and courts, will be the exclusive sources of equality rights implementation, we need to recognize other mechanisms in the decision-making processes of everyday life that ensure the effective enforcement of equality. Governments still have an essential role to play, in securing enforcement of equality rights, and in evaluating and monitoring inclusive processes. However, though important for symbolic, tangible, and practical reasons, state-based enforcement of equality rights must be supplemented by other institutional and social processes for securing equality. Equitable inclusion needs to become an objective embedded in the multiple processes of decision making throughout public and private life. It needs to be taken into account as a positive good in the institutional cultures of our everyday lives.

t o wa r d i n c l u s i v e e q u a l i t y Inclusive equality combines the insights of two innovations in equality theory: recognition of substantive equality, and systemic discrimination. Legal recognition of substantive equality marked a fundamentally important departure from formal equality. Whereas formal equality is assessed in terms of equal treatment without regard to the social contexts of inequality, substantive equality

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emphasizes unequal outcomes and effects. A focus on effects, however, raises complex questions about the relative degree of harm, and efforts to provide legal guidelines or standards for assessing violations of substantive equality have been mired in subjectivity. Indeed, recourse to the very nebulous and open-ended concept of human dignity as a measure of the violation of substantive equality has proven problematic and uncertain. A constitutional conception of equality based on effects requires some further indicators to assist us in understanding when violations have occurred. Systemic discrimination provides important insights in this regard. It is premised on acknowledgment of the institutionalized and structural dynamics of exclusion, harassment, and inequality. Systemic discrimination occurs when direct discrimination and open stereotyping become pervasive in a cultural or institutional context and when apparently neutral rules, standards, practices, or policies have disparate effects on different communities and groups in society. It is sustained (both ideologically and materially) by the cyclical and continued realities of exclusion and inequitable access to society’s resources, benefits, and opportunities. Inclusive equality embraces the lessons of both substantive equality and systemic discrimination. It highlights the ways in which inequality is linked to both the substantive effects of discrimination (including social, psychological, physical, and economic harms) and the systemic and institutional practices and processes that reproduce it. These include procedural inequities such as failure to consult or investigate the possibilities of accommodation, exclusion of historically disadvantaged groups from decision-making, lack of democracy, and absence of relationships of care. Evidence of long-term and systemic procedural exclusion reinforces the likelihood that disparate harms resulting from such exclusion are the result of discrimination. By using a new terminology – that of inclusive equality – I do not mean to undermine in any way the significant and historic victories that recognition of substantive equality and systemic discrimination represent. I simply seek to add to these concepts by showing how both substance and process issues are central to the dynamic reproduction of inequality and underscoring the risk that social inequalities will continue to be ideologically justified as inevitable or natural. Inclusive equality is premised on a commitment to inclusion, specifically of those who have been historically and structurally excluded

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from an extensive range of opportunities, resources, benefits, and structures of democratic participation. Building a more inclusive society requires a restructuring of the historical, structural, and systemic relations that produce, reproduce, and justify social, political, legal, and economic exclusion and inequality. It also requires a valorization of the strengths, abilities, and potential of those at the bottom of our social hierarchies, to reverse the inaccurate assumption that those with power are more knowledgeable and meritorious. In this way, we may begin a process of developing a truly inclusive and egalitarian society, a society that honours the fragility of the hopes, dreams, fears, and aspirations of each individual within the communities and relationships that sustain them.

Notes

introduction 1 Mari Matsuda, “Multiple Consciousness as Jurisprudential Method,” (1989) 11 Women’s Rights Law Reporter 7 at 8. 2 While many associate inequality with vertical economic disparities and discrimination with horizontal, group-based exclusions and denials, legal developments in Canada have tended to limit equality rights to horizontal group-based discrimination, see Bob Hepple, “Work, Empowerment and Equality” (Public Lecture delivered at the International Institute for Labour Studies, Geneva, November 2000, online: http:// www.ilo.org/public/english/bureau/inst/papers/ publecs/ hepple/. Debate continues about whether poverty and economic vulnerability should be recognized as protected grounds of discrimination, see Gwen Brodsky and Shelagh Day, “Women’s Poverty is an Equality Violation,” in Fay Faraday, Margaret Denike, and M. Kate Stephenson, eds. Making Equality Rights Real: Securing Substantive Equality Under the Charter (Toronto: Irwin Law, 2006). 3 For an expansive interpretation of access to justice, see Roderick Macdonald, “Access to Justice in Canada Today: Scope, Scale and Ambitions,” in Julia Bass, W.A. Bogard, and Frederick Zemans, eds. Access to Justice for a New Century (Toronto: Irwin Law, 2005), where he critiques the conflation of access to justice with access to the formal institutions and processes of law. See also, Roderick Macdonald, “Access to Justice and Law Reform,” (1990) 10 Windsor Yearbook of Access to Justice 287. 4 Walter S. Tarnopolsky and William F. Pentney, Discrimination and the Law: Including Equality Rights under the Charter (Toronto: Carswell, 2001) Release No. 6.

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5 See Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536. See also Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561. 6 Canadian National Railway v. Canada (Human Rights Commission), [Action Travail des Femmes] [1987] 1 S.C.R. 1114 at 1139. 7 Ibid. 8 Employment Equity Act, R.S.C. 1995, c. 44, section 2. 9 See Human Resources and Social Development website at http://www. rhdcc.gc.ca. 10 For an overview of provincial pay equity laws, see Canada, Pay Equity: A New Approach to a Fundamental Right, Federal Pay Equity Task Force Final Report (Ottawa: 2004), chapter 2 (hereafter, Federal Pay Equity Task Force Final Report). See also A.B. Bakan and A. Kobayashi, Employment Equity Policy in Canada: An Interprovincial Comparison (Ottawa: Status of Women Canada, 2000); Marie-Thérèse Chicha, L’Équité salariale: mise en oeuvre et enjeux, 2nd Ed. (Cowansville: Yvon Blais, 2000). 11 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11, [Canadian Charter], s. 15. 12 See Law Society of British Columbia v. Andrews, [1989] 1 S.C.R. 143; and Law v. Canada (Minister of Employment and Immigration, [1999] 1 S.C.R. 497(hereafter Law). The Court has recently shifted away from its previous focus on human dignity, see R. v. Kapp, [2008] 2 S.C.R. 483. 13 See Constitution Act, 1982, Part II, ss.35 and 35.1 (Aboriginal rights); Canadian Charter, ss. 16–23 (minority language rights); s. 27 (multiculturalism) and s. 28 (gender equality). For a discussion of these developments, see Colleen Sheppard, “Constitutional Recognition of Diversity in Canada,” (2006) 30 Vermont L. Rev. 463. 14 See, for example, Brenda Cossman and Judy Fudge, eds., Privatization, Law and the Challenge to Feminism (Toronto: University of Toronto Press, 2002). 15 See, for example, Hester Lessard “The Empire of the Lone Mother: Parental Rights, Child Welfare Law and State Restructuring,” (2002) 39 Osgoode Hall Law Journal 717 at 745. 16 See David Cameron and Janice Stein, Street Protests and Fantasy Parks: Globalization, Culture, and the State (Vancouver: ubc Press, 2002). 17 Anthony Giddens, The Third Way: The Renewal of Social Democracy (Cambridge: Polity Press, 1998).

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18 See Martha Minow, Partners, Not Rivals: Privatization and the Public Good (Boston: Beacon Press, 2003). 19 Jane Jenson and Denis St. Martin, “Building Blocks for a New Welfare Architecture: From Ford to lego?” (Paper Prepared for Annual Meeting of the American Political Science Association, Boston, ma, August 2002). Online at: http://www.allacademic.com/meta/p_mla_ apa_research_citation/0/6/5/2/9/p65294_index.html (accessed 27 January 2010). 20 See Law, at paras. 62–75. 21 For a discussion of legal pluralism, see, e.g., Sally Engle Merry, “Legal Pluralism,” (1988) 22 Law and Society 869. 22 Patricia A. Monture, “Ka-Nin-Geh-Heh-Gah-E-Sa-Nonh-Yah-Gah,” (1986) 2 Canadian Journal of Women and the Law 159 at 159. 23 See Jean Baker Miller, Toward a New Psychology of Women, 2d ed. (Boston: Beacon Press, 1986) and Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, ma: Harvard University Press, 1982). 24 See Iris Marion Young, Inclusion and Democracy (Oxford: Oxford University Press, 2000). 25 Kathyrn Abrams, “Sex Wars Redux: Agency and Coercion in Feminist Legal Theory,” (1995) Columbia Law Review 304. 26 Naila Kabeer, ed. Inclusive Citizenship – Meanings and Expressions (London and New York: Zed Books, 2005); Ruth Lister, “Inclusive Citizenship: Realizing the Potential,” (2007) 11 Citizenship Studies 49; Catherine Frazee, “Toward Robust Citizenship,” (Paper Presented to the End Exclusion Forum, Celebrating the 25th Anniversary of obstacles, Report of the Special Parliamentary Committee on the Disabled and the Handicapped, 2 November 2006). 27 On governance in a global era, see Saskia Sassen, “The Participation of States and Citizens in Global Governance,” (2003) 10 Indiana Journal of Global Legal Studies 5; and David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford: Stanford University Press, 1995).

chapter one 1 See, for example, Christie v. York Corp., [1940] S.C.R. 139 [Christie], where the discriminatory refusal to serve a black man in a tavern was justified based on property rights and freedom of contract. See also, Loew’s Montreal Theatres v. Reynolds, (1919) 30 Que. K.B. 459

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(racially discriminatory exclusion from access to the orchestra section of a theatre in Montreal). One exceptional case is Johnson v. Sparrow, (1899) 15 C.S. 104, where Justice Archibald linked race-based exclusions to a legacy of prejudice created by the institution of slavery. In Christie, ibid., the Supreme Court of Canada upheld the discrimination, writing, “chaque propriétaire est maître chez lui; il peut, à son gré, établir toutes règles non contraires aux bonnes moeurs et à l’ordre public.” See Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900–1950 (Toronto: Osgoode Society for Canadian Legal History by University of Toronto Press, 1999), in chapters 5–6. See Robin W. Winks, The Blacks in Canada – A History, 2d. ed. (Montreal, Kingston: McGill-Queen’s University Press, 1997). See Bruce Ryder, “Racism and the Constitution: The Constitutional Fate of British Columbia Anti-Asian Immigration Legislation, 1884– 1909,” (1991) 29 Osgoode Hall Law Journal 619; see also Eleanor Laquian et al., The Silent Debate: Asian Immigration and Racism in Canada (Vancouver: Institute of Asian Research U.B.C., 1998). See Ken Adachi, The Enemy That Never Was: A History of Japanese Canadians (Toronto: McLelland & Stewart, 1991), at 251–4 and preface; and Elliot Tenofsky, “The War Measures and Emergency Acts: Implications for Canadian Civil Rights and Liberties,” (1989) 19 American Review of Canadian Studies 293 at 293. See also Cooperative Committee on Japanese Canadians v. AG Canada, [1947] A.C. 87 (PC) (unsuccessful court challenge of Japanese internment). A much smaller number of individuals of Italian or German descent were also subject to internment orders during WWII; see Mary Halloran, “Ethnicity, the State and War: Canada and Its Ethnic Minorities 1939– 1945,” (1987) 21 International Migration Review 159. Ukrainians had been interned during WWI; see P. Melnycky, “The Internment of Ukrainians in Canada,” in F. Swyripa and J.H. Thompson, eds., Loyalties in Conflict: Ukrainians in Canada during the Great War (Edmonton: CIUS Press, 1983), at 23–4. See Canada, People to People, Nation to Nation (Ottawa: Royal Commission on Aboriginal Peoples Report (rcap), 1996). Vol. 1, chapter 6. See also Alan Cairns, Citizens Plus: Aboriginal Peoples and the Canadian State (Vancouver: ubc Press, 2000); and Harold Cardinal, The Unjust Society: The Tragedy of Canada’s Indians (Edmonton: M.G. Hurtig, 1969), critiquing the 1969 Federal White Paper that advocated assimilation of Canada’s Aboriginal peoples.

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8 Irving Abella and Harold Troper, None Is Too Many: Canada and the Jews of Europe, 1933–1948 (Toronto: Lester and Orpen Dennys, 1983). See also Irving Abella, A Coat of Many Colours: Two Centuries of Jewish Life in Canada (Toronto: Lester & Orpen Dennys, 1990). 9 Jane Ursel, Private Lives, Public Policy: 100 Years of State Intervention in the Family (Toronto: Women’s Press, 1992). 10 See Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: Women’s Press, 1991). See also Report of the Royal Commission on the Status of Women in Canada (Ottawa: Information Canada, 1970); Sandra Burt, Lorraine Code and Lindsay Dorney, Changing Patterns: Women in Canada (Toronto: McClelland and Stewart, 1988). 11 See Gerald B. Robertson, Mental Disability and the Law in Canada (Toronto: Carswell, 1994). 12 Ruthann Robinson, “Lesbianism in Anglo and European Legal History,” (1990) 5 Wisconsin Women’s Law Journal 1; Miriam Smith, Lesbian and Gay Rights in Canada: Social Movements and EqualitySeeking, 1971–1995 (Toronto: University of Toronto Press, 1999); Didi Herman, Rights of Passage: Struggles for Lesbian and Gay Legal Equality (Toronto: University of Toronto Press, 1994). 13 Universal Declaration of Human Rights, 10 December 1948, G.A. Res. 217 A(III), U.N. Doc. A/810. 14 Peter S. Li, The Chinese in Canada, 2nd ed. (Toronto: Oxford University Press, 1998), at 35; see also Errol P. Mendes, ed., Racial Discrimination: Law and Practice (Scarborough, on: Carswell, 1995); Vic Satzewich, Deconstructing a Nation: Immigration, Multiculturalism and Racism (Halifax: Fernwood Publishing, 1992); and Peter S. Li, Race and Ethnic Relations in Canada, 2nd ed. (Don Mills, Ont.: Oxford University Press, 1999) [Race and Ethnic Relations in Canada]. 15 For an overview of the introduction of human rights law in Canada, see Walter S. Tarnopolsky and William F. Pentney, Discrimination and the Law: Including Equality Rights Under the Charter (Toronto: Carswell, 2001), Release No. 6 [Discrimination and the Law]. 16 Charter of Human Rights and Freedoms, R.S.Q. c. C-12 [Quebec Charter]. 17 Canadian Human Rights Act, R.S.C. 1985, c. H-6. 18 See Quebec Charter. See also, for example, Vriend v. Alberta, [1998] 1 S.C.R. 493. 19 For a general overview of anti-discrimination provisions in human rights legislation in Canada, see Tarnopolsky and Pentney,

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Discrimination and the Law. See also Colleen Sheppard, Litigating the Relationship between Equity and Equality, (Toronto: Ontario Law Reform Commission Study Paper, 1993) at 5–10 [Litigating the Relationship]. For an overview of changing approaches to anti-discrimination law, see Alfred Blumrosen, “Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination,” (1972) 71 Michigan Law Review 59 at 66–75. See, for example, Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (Ottawa: Department of Justice, 2000) (Chair: G. La Forest) [Promoting Equality Report]; Ontario Human Rights Commission, Strengthening Ontario’s Human Rights System: What We Heard, Consultation Report (Ontario: Ontario Human Rights Commission, 2005); Ontario, Human Rights Code Review Task Force, Achieving Equality: A Report on Human Rights Reform (Toronto: Queen’s Printer, 1992) (Chair: Mary Cornish); William Black, Special Advisor, Report on Human Rights in British Columbia (Vancouver: Multiculturalism B.C., 1994); and Saskatchewan Human Rights Commission, Renewing the Vision: Human Rights in Saskatchewan (Saskatoon: Saskatchewan Human Rights Commission, 1996). On the linear bias in legal historiography, see Robert W. Gordon, “Critical Legal Histories,” (1984) 36 Stanford Law Review 57. For a discussion of the legal complexities surrounding intent as an element of discrimination, see Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114 at 1134–5 [Action travail des femmes]. Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 [Simpsons-Sears]. See also Bhinder and Canadian Human Rights Commission, [1985] 2 S.C.R. 561; Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525. Simpsons-Sears at para. 18. British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Services Employee Union (BCGSEU), [1999] 3 S.C.R. 3 at paras. 25–49 [Meiorin]. For case comments on the Meiorin decision, see Colleen Sheppard, “Of Forest Fires and Systemic Discrimination: A Review of British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. (2001) 46 McGill Law Journal 533 [“Of Forest Fires and Systemic Discrimination”] and

Notes to pages 20–2

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28 29

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Dianne Pothier, “B.C.G.S.E.U.: Turning a Page in Canadian Human Rights Law,” (1999) 11 Constitutional Forum 19. For a discussion of the degree of statistical disparity required to found a claim of discrimination, see Sheppard, “Of Forest Fires and Systemic Discrimination,” ibid. at 544–8. See also Beatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987) at 173–92; and Dianne Pothier, “M’Aider, Mayday: Section 15 of the Charter in Distress,” (1996) 6 National Journal of Constitutional Law 295, explaining how both quantitative and qualitative evidence is important to understanding adverse effect discrimination. See McLachlin C.J. in Meiorin, at paras. 27–9. This observation was made in Gwen Brodsky and Shelagh Day, “The Duty to Accommodate: Who Will Benefit?” (1996) 75 Canadian Bar Review 433 at 465. Colleen Sheppard, “Of Forest Fires and Systemic Discrimination.” For an analysis of discrimination and immigration, see Colleen Sheppard, “Women as Wives: Immigration Law and Domestic Violence,” (2000) 26 Queen’s Law Journal 1. For a discussion of domestic workers, see Egan v. Canada, [1995] 2 S.C.R. 513, per L’Heureux-Dubé J.; Colleen Sheppard, “Grounds of Discrimination: Towards an Inclusive and Contextual Approach,” in Commission des droits de la personne et des droits de la jeunesse et le Barreau du Québec, Les 25 ans de la Charte québécoise (Cowansville, Quebec: Yvon Blais, 2000), also published in (2001) 80 Canadian Bar Review 893 [“Grounds of Discrimination”]; and Adelle Blackett and Colleen Sheppard, “Collective Bargaining and Equality: Making Connections,” (2003) 142 International Labour Review 419. Parallel shifts in understanding occurred in the domain of criminal law policy, where crime was increasingly understood to be embedded in systemic and institutional contexts and not simply a problem of individual anti-social behaviour. See David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001) [The Culture of Control]. See Rosalie Silberman Abella, Equality in Employment: A Royal Commission Report (Ottawa: Ministry of Supply and Services Canada, 1984) at 9 [Abella Report]. Québec v. Chauveau, at paras. 245–6.“ La discrimination peut aussi résulter d’un ensemble de facteurs complexes et de pratiques institutionnalisées qui interagissent de manière à produire un effet global d’exclusion sur les membres de groupes protégés. Les effets

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Notes to pages 23–4

discriminatoires directs et indirects s’insèrent alors plus largement dans un réseau d’interrelations et de pratiques au sein du (des) système(s).” [Free translation.] The integral connection between the two is illustrated in the events leading up to the tragic shooting death of an innocent man, Marcellus François, by the Montreal Urban Community Police on 3 July 1991, while sitting unarmed in his car. Mr. François was mistakenly identified as another person, Kirk Haywood (now deceased), who was wanted by the police in an investigation for attempted murder. A senior police officer at the scene of the shooting noted that, “the only similarity between Haywood and François was the colour of their skin, the difference in appearance being like night and day,” in Harvey W. Yarosky, Coroner’s Report following an Inquest into the Death of Mr. Marcellus François (Québec: Bureau du coroner, 27 April 1992). The coroner concluded that “there are disturbing signs within the Montreal Urban Community Police Force of insensitivity to, ignorance about, and lack of respect for members of the black community,”at 66. Meiorin at para. 54. Ibid. Simpsons-Sears, at para. 22 per McIntyre J. See Meiorin at para. 54 where McLachlin C.J. sets out what she calls a “unified approach” to the bfor (applicable for all types of discrimination), which includes in its final prong an assessment of whether it is impossible to accommodate an employee who otherwise risks exclusion due to the workplace policy or practice. Meiorin, at para. 66 (citing David M. Lepofsky, “The Duty to Accommodate: A Purposive Approach” (1993), 1 Canadian Labour Law Journal 1. Meiorin, at para. 54. Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489 at para. 62. Meiorin, at para. 68. Note that in two recent decisions, the Supreme Court of Canada has elaborated on its understanding of what constitutes impossibility and undue hardship: see Hydro-Québec v. Syndicat des employées de techniques professionnelles et de bureau d’HydroQuébec, section locale 2000 (SCFP-FTQ),[2008] 2 S.C.R. 561 and McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, [2007] 1 S.C.R. 161. Canadian Council of Persons with Disabilities v. VIA Rail, [2007] 1 S.C.R. 650.

Notes to pages 25–8

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44 Ibid. at para. 130. 45 Ibid. at para. 186. 46 Though framed in terms of section 1 of the Canadian Charter of Rights and Freedoms, the Multani case provides another example of a willingness on the part of the Court to engage meaningfully with the duty to accommodate (Multani v. Commission scolaire MargueriteBourgeoys, [2006] 1 S.C.R. 256). 47 Brodsky and Day, at 462. 48 Ibid. 49 Joan Williams and Nancy Segal, “Beyond the Maternal Wall: Relief for Family Caregivers Who Are Discriminated Against on the Job,” (2003) 26 Harvard Women’s Law Journal 77 at 80. 50 Meiorin, at para. 42. 51 Ibid. 52 Executive Order 11246, 24 Sept. 1965 (3 CFR 339), amended to include sex by Executive Order 11375, 13 Oct. 1967 (3 CFR 684). See Susan Clayton and Faye Crosby, Justice, Gender, and Affirmative Action (Ann Arbor: University of Michigan Press, 1992) at 13–14. See also Tarnopolsky and Pentley, Discrimination and the Law, chapter 4. 53 University of California Regents v. Bakke, 438 U.S. 265 (1978) (per Marshall J). 54 Employment Equity Act, S.C. 1995, c. 44 [Employment Equity Act, 1995] 55 The Federal Contractors Program for Employment Equity was implemented 1 October 1986 and applies to provincially regulated employers with a workforce of one hundred or more employees. See discussion in Harish C. Jain, “Racial Minorities and Affirmative Action/Employment Equity Legislation in Canada,” (1989) 44 Relations Industrielles 593. 56 See Colleen Sheppard, “The Promise and Practice of Protecting Human Rights: Reflections on the Quebec Charter of Human Rights and Freedoms,” in Mélanges Paul-André Crépeau (Cowansville, Qc.: Yvon Blais, 1997) at 663–73. For an example of a recent public sector provincial initiative, see An Act respecting Equal Access to Employment in Public Bodies, S.Q. c. A-2.01. It is noteworthy that the legislation goes beyond the groups designated in federal employment equity law to include “persons whose mother tongue is neither French nor English” (see section 1). 57 Abella Report, at 9. 58 Ibid.

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59 Ibid. at 193, quoting from Canada, Affirmative Action Technical Training Manual, (Ottawa: Employment and Immigration Canada, 1982) at 41. 60 Employment Equity Act, 1995, section 2. 61 See, for example, Pay Equity Act, R.S.Q. c. E-12.001; Pay Equity Act, R.S.O. 1990, c. P.7; Pay Equity Act, R.S.N.S. 1989, c. 337. 62 See, for example, Ontarians with Disabilities Act, S.O. 2001, c. 25, and Americans with Disabilities Act, 42 U.S.C. (1990). 63 On educational equity, see Blair Stonechild, The New Buffalo: The Struggle for Aboriginal Post-Secondary Education in Canada (Winnipeg: University of Manitoba Press, 2006) and John Aubrey Douglass, The Conditions for Admission: Access, Equity, and the Social Contract of Public Universities (Stanford: Stanford University Press, 2007). See also Sheppard, Litigating the Relationship. 64 Garland, The Culture of Control, at 124. 65 Ibid. at 126. 66 For an excellent review of enforcement, see Carol Agocs, “Canada’s Employment Equity Legislation and Policy, 1986–2000: Unfulfilled Promises,” in Carol Agocs, ed., Workplace Equality: International Perspectives on Legislation, Policy, and Practice (The Hague; New York: Kluwer Law International, 2002). Agocs notes that the revised legislation of the mid-1990s, while improving enforcement, also contained provisions that limited the use of hiring quotas and reliance on data submitted in employment equity reports in the human rights complaints process. She further highlights the legislative retreat in Ontario where employment equity legislation was abolished in the mid-1990s as well as a decline in resources allocated to human rights commissions. For a critique of the earlier employment equity legislation, see, for example, Phebe-Jane Poole and Judy Rebick, “Not Another Hundred Years: The Failure of the Federal Employment Equity Act,” (1993) 1 Canadian Labour Law Journal 314. 67 See Sheila McIntyre, “Backlash Against Equality: The Tyranny of the Politically Correct,” (1993) 38 McGill Law Journal 1. See also Frances Henry & Carol Tator, “State Policy and Practices as Racialized Discourse: Multiculturalism, the Charter and Employment Equity,” in Peter S. Li, ed., Race and Ethnic Relations in Canada, 88–115 at 103–6 (reviewing the ideological significance of the repeal of employment equity legislation in Ontario). 68 See s. 15(2) of the Canadian Charter of Rights and Freedoms, discussed in chapter 2. For a review of legislative exemptions for special

Notes to pages 30–2

69 70 71

72 73

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programs in human rights statutes, see Sheppard, Litigating the Relationship. Action Travail des femmes, at 1143. Ibid. Ibid. On the last point, Dickson C.J. cites A. Blumrosen, “Quotas, Common Sense and Law in Labour Relations: Three Dimensions of Equal Opportunity,” in W.S. Tarnopolsky, ed., Some Civil Liberties Issues of the Seventies (Toronto: Osgoode Hall Law School, York University, 1975), 5, emphasizing at 15, the “informal processes of economic life.” He also cites Carol Agocs, “Affirmative Action Canadian Style,” (1986) 12 Canadian Public Policy 148. Meiorin, at para. 41. Patricia A. Monture, “The Violence We Women Do: A First Nations View,” in Constance Backhouse and David H. Flaherty, eds., Challenging Times: The Women’s Movement in Canada and the United States (Montreal: McGill-Queen’s University Press, 1992), 193 at 194–5, citing Verna Kirkness, “Emerging Native Women” (1986) 2 Canadian Journal of Women and the Law 408. But note that in Plessy v. Ferguson, 163 U.S. 537 (1896), Mr. Plessy’s first line of argument was that he was white and not black since he was 7/8 white. US race laws at the time were premised on a mythology of racial purity. See discussion in Sheppard, “Grounds of Discrimination.” Nitya Iyer, “Categorical Denials: Equality Rights and the Shaping of Social Identity,” (1993) 19 Queen’s Law Journal 179 at 184–5 [“Categorical Denials”]. Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,” (1989) University of Chicago Legal Forum 139. For a discussion of intersectionality in the Quebec context, see Marie-Claire Belleau, “La dichotomie droit privé/droit public dans le contexte québécois et canadien et l’intersectionalité identitaire,” (1998) 39 Cahiers de Droit 177. Crenshaw, ibid. at 151. See Nitya Duclos, “Disappearing Women: Racial Minority Women in Human Rights Cases,” (1993) 6 Canadian Journal of Women and the Law 25 (since publishing this article, the author has published using her current name,Iyer)[“Disappearing Women”]. Alexander v. British Columbia (1989) 10 Canadian Human Rights Reporter D/5871.

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Notes to pages 33–7

81 Duclos, “Disappearing Women,” at 44–5. In subsequent scholarship, Duclos/Iyer has analyzed the Mossop case from an intersectionality perspective. See Iyer, “Categorical Denials,” at 194ff. 82 There have been legislative and judicial responses to the intersectionality critique in Canadian law. Amendments to the Canadian Human Rights Act in 1998, for example, included a specific provision to recognize that a complaint could be based on multiple grounds of discrimination or the effects of a combination of grounds. See, for example, Naqvi v. Canada (Employment and Immigration Commission), [1994] 19 Canadian Human Rights Reporter D/139. 83 See Egan, at para. 80. See also Iyer, “Categorical Denials,” and Anne Bayefsky, “A Case Comment on the First Three Equality Rights Cases Under the Canadian Charter of Rights and Freedoms: Andrews, Workers’ Compensation Reference, Turpin,” (1990) 1 Supreme Court Law Review (2d) 503 at para. 78. 84 Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at paras. 93–4. 85 Angela P. Harris, “Race and Essentialism in Feminist Legal Theory,” (1990) 42 Stanford Law Review 581. 86 Jennifer Nedelsky, “Reconceiving Rights as Relationship,” (1993) 1 Review of Constitutional Studies 1 at 13 [Nedelsky]. 87 Martha Minow, Making all the Difference: Inclusion, Exclusion and American Law (Ithaca: Cornell University Press, 1900) at 277-8. 88 Martha Minow, “Learning to Live with the Dilemma of Difference: Bilingual and Special Education” (1985) 48 Law and Contemporary Problems 157 at 204. See also, Audre Lorde, “Age, Race, Class and Sex,” Sister Outsider: Essays and Speeches (Trumansburg: Crossing Bridge, 1984), 114-23, Patricia Monture, Ka-Nin-Geh-Heh-gah-E-Sa-NonhYah-gah,” (1986) 2 Canadian Journal of Women and the Law 159.

chapter two 1 Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 54 per La Forest J. (citations omitted) [Eldridge]. 2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 [Canadian Charter]: 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without

Notes to pages 37–9

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discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 15(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. Of note is the fact that the equality rights provisions came into effect in 1985 rather than 1982, in order to give governments a three-year time period to rid their laws of discriminatory classifications. See, for example, Halpern v. Canada (A.G.), (2003), 65 O.R. (3d) 161 (Ont. C.A.); Hendricks v. Québec (Procureur général), [2002] R.J.Q. 2506; Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698; Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256; Eldridge. S.C. 1960 c. 44. The Canadian Bill of Rights was interpreted restrictively: see A.G. Canada v. Lavell; Isaac v. Bedard, [1974] S.C.R. 1349 [Lavell] and Bliss v. Canada (Attorney General), [1979] 1 S.C.R. 183 [Bliss]. R v. Drybones, [1970] S.C.R. 282 was the only case where a legislative provision was held inoperative due to its discriminatory nature. See Roncarelli v. Duplessis, [1959] S.C.R. 121. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 [Andrews]. Ironically, Andrews was a highly privileged white male British lawyer contesting his exclusion from the legal profession on the grounds of citizenship. Andrews, ibid. See Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561. Andrews, at 164. Although the Supreme Court of Canada rejected a formalistic similarly situated test, for a discussion of the reasonable classification test to determine who is similarly situated, see Joseph Tussman and Jacobus tenBroek, “The Equal Protection of the Laws,” (1949) 37 California Law Review 341. See also, N. Colleen Sheppard, “Recognition of the Disadvantaging of Women: The Promise of Andrews v. Law Society of British Columbia,” (1989) 35 McGill Law Journal 207 at 218–222. Andrews, at 174.

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Notes to pages 39–43

11 See Miron v. Trudel, [1995] 2 S.C.R. 418; Egan v. Canada, [1995] 2 S.C.R. 513; Thibaudeau v. Canada, [1995] 2 S.C.R. 627. 12 Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [Law]. 13 Law at para. 88. 14 R. v. Kapp, [2008] 2 S.C.R. 483 [Kapp]. 15 Law at para. 25. 16 See discussion in Kapp at paras. 18–22. 17 See Andrews at 175. 18 See Gwen Brodsky and Shelagh Day, Canadian Charter Equality Rights for Women: One Step Forward or Two Steps Back? (Ottawa: Canadian Advisory Council on the Status of Women, 1989). See discussion in Colleen Sheppard, “Grounds of Discrimination: Towards an Inclusive and Contextual Approach,” (2001) 80 Canadian Bar Review 893 at 908–11. 19 R. v. Turpin, [1989] 1 S.C.R. 1296 at 1333 [Turpin]. 20 Law, at para. 88. 21 Eldridge at para. 54. 22 Law, at para. 51. For a discussion of the purposes of equality rights, see Donna Greschner, “Case Comment: Does Law Advance the Cause of Equality?” (2001) 27 Queen’s Law Journal 299 and Donna Greschner, “The Purpose of Canadian Equality Rights,” (2002) 6 Review of Constitutional Studies 291. On the meaning of dignity, see Denise G. Réaume, “Discrimination and Dignity,” (2003) 63 Louisiana Law Review 645; Denise G. Réaume, “Law v. Canada (Minister of Employment and Immigration),” (Reconsideration of Canadian Supreme Court decision regarding factors relevant to findings of section 15 violations of dignity by the Women’s Court of Canada project) (Special Issue: Rewriting Equality) (2006) 18 Canadian J. of Women and the Law 143. 23 See, e.g., Lovelace v. Ontario, [2000] 1 S.C.R. 950 [Lovelace]; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703 [Granovsky]; Lavoie v. Canada, [2002] 1 S.C.R. 769 [Lavoie]; Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 249 [Gosselin]; Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R 325. 24 See Kapp at para. 22, and articles cited therein. 25 Law, at para. 88; see also paras. 62–75. These contextual factors were also endorsed in Kapp. 26 See, for example, Lovelace, Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241.

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27 Andrews, at 164. 28 See Dianne Pothier, “Equality as a Comparative Concept: Mirror, Mirror on the Wall, What’s the Fairest of Them All?” [“Equality as a Comparative Concept”] in Sheila McIntyre and Shelagh Day eds., Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms (Toronto: LexisNexis, 2006) 135–50. 29 See Miron v. Trudel, at para. 68 per McLachlin J.; Andrews at 152 per Wilson J.; Turpin, at 1331–2. On the “discrete and insular minority,” see Andrews 152. See also Egan v. Canada, [1995] 2 S.C.R. 513; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Thibaudeau v. Canada, [1995] 2 S.C.R. 627. 30 See, Margot Young, “Blissed Out: Section 15 at Twenty,” in McIntyre and Rodgers eds., at 45–70; Pothier, “Equality as a Comparative Concept”; Fiona Sampson, “The Law Test for Discrimination and Gendered Disability Inequality,” in Fay Faraday, Margaret Denike, and M. Kate Stephenson eds., Making Equality Rights Real: Securing Substantive Equality Under the Charter (Toronto: Irwin Law, 2006) 245–74. 31 Bliss. 32 [1989] 1 S.C.R. 1219 33 [2004] 3 S.C.R. 657 34 Ibid. at para. 54. 35 [2004] 3 S.C.R. 357 36 Ibid. at para. 23. 37 Pothier, “Equality as a Comparative Concept,” at 145. 38 See Kapp; Lovelace. See also Colleen Sheppard, Litigating the Relationship between Equity and Equality (Toronto: Ontario Law Reform Commission Study Paper, 1993) [Litigating the Relationship]. See e.g. Regents of the University of California v. Bakke, 438 U.S. 265 (1978). 39 Angela Miles, “Ideological Hegemony in Political Discourse: Women’s Specificity and Equality,” in Angela Miles and Geraldine Finn, eds., Feminism: From Pressure to Politics (Montreal: Black Rose Books, 1989) 271–285 at 276. 40 See, for example, Didi Herman, “Are We Family? Lesbian Rights and Women’s Liberation,” (1990) 28 Osgoode Hall Law Journal 789. See also, Didi Herman, Rights of Passage: Struggles for Lesbian and Gay Legal Equality (Toronto: University of Toronto Press, 1994); Lise Gotell, “Queering Law: Not by Vriend,” (2002) 17 Canadian Journal of Law and Society 89 [“Queering Law”]; Claire Young and Susan

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Boyd, “Losing the Feminist Voice: Debates on Legal Recognition of Same Sex Partnerships in Canada,” (2006) 14 Feminist Legal Studies 213. See Dianne Pothier and Richard Devlin eds., Critical Disability Theory: Essays in Philosophy, Politics, Policy, and Law (Vancouver: University of British Columbia Press, 2006). Section 27 of the Charter provides: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” See, for example, R v. Keegstra, [1990] 3 S.C.R. 697 where s. 27 played a role in upholding the prohibition of hate speech as a reasonable limit to freedom of expression under s. 1; see also R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 where the Supreme Court held that requiring businesses to close on the Christian Sabbath violated s. 2(a) freedom of religion and was not consistent with s.27. See sections 16–23 of the Charter. Mahe v. Alberta, [1990] 1 S.C.R. 342. See also Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3; Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3; Gosselin (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 238. See Constitution Act, 1982, Part II, sections 35 and 35.1. For a review of the historical background regarding constitutional Aboriginal rights, see discussion of the “Recognized and Affirmed” language in section 35 in R. v. Sparrow, [1990] 1 S.C.R. 1075, per Dickson C.J. and La Forest, J. On assimilation and education policies, see John Roberts, Darion Boyington and Shahé Kazarian eds., Diversity and First Nations Issues in Canada (Toronto: Emond Montgomery, 2008), chapter 11; Celia Haig-Brown, Resistance and Renewal Surviving the Indian Residential School (Vancouver: Arsenal Pulp Press, 1998); Royal Commission Report on Aboriginal Peoples. Charles Taylor, Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism (Montreal: McGill-Queen’s University Press, 1994), at 46. Martha Minow, Making All the Difference. See, for example, Nitya Iyer, “Some Mothers Are Better than Others: A Re-examination of Maternity Benefits,” in Susan Boyd, ed., Challenging the Public/Private Divide: Feminism, Law and Public Policy (Toronto: University of Toronto Press, 1997), who argues that hard-won maternity benefits favour privileged women over women involved in precarious work and part-time work, the latter group largely

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being made up of women of colour, immigrant and Aboriginal women, and women with lower levels of education. Ayelet Schachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge, New York: Cambridge University Press, 2001) [Multicultural Jurisdictions]. See also Vrinda Narain, Gender and Community: Muslim Women’s Rights in India (Toronto: University of Toronto Press, 2001)[Gender and Community]. See Lise Gottel, “Queering Law.” See Dianne Pothier, “Miles to Go: Some Personal Reflections on the Social Construction of Disability,” (1992) 14 Dalhousie Law Journal 526 (“Miles to Go”). See Will Kymlicka ed., The Rights of Minority Cultures (Oxford: Oxford University Press, 1995); Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Oxford University Press, 1995); Will Kymlicka, Liberalism, Community and Culture (Oxford: Oxford University Press, 1989). Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship (Oxford: Oxford University Press, 2001) at 9 (referring to an emerging consensus in this regard, which he labels “liberal culturalism”). In this book, Kymlicka also explores the connection between the protection of minority rights and nation-building. Will Kymlicka, Finding Our Way: Rethinking Ethnocultural Relations in Canada (Toronto: Oxford University Press, 1998) at 62. Narain, Gender and Community; Francisco Valdes et al., eds, Crossroads, Direction and a New Critical Race Theory (Philadephia: Temple University Press, 2002). See also Ayelet Schachar, “Religion, State, and the Problem of Gender: New Modes of Citizenship and Governance in Diverse Societies,” (2005) 50 McGill Law Journal 49; Schachar, Multicultural Jurisdictions; Beverley Baines and Ruth RubioMarin, eds., The Gender of Constitutional Jurisprudence (Cambridge: Cambridge Univ. Press, 2005). Narain, Gender and Community; Schachar, Multicultural Jurisdictions. Narain, Gender and Community; Annie Bunting, “Theorizing Women’s Cultural Diversity in Feminist International Human Rights Strategies,” (1993) 20 Journal of Law and Sociology 13. James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995) at 11. Tully goes on to comment that: “Despite this transformation, as Clifford Geertz remarks, theorists tend to uphold versions of the old view, inherited from an age of European imperialism, of humans situated in

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independent, closed and homogeneous cultures and societies” (12). See Clifford Geertz, “The Uses of Diversity,” (1986) 25 Michigan Quarterly Review 105. Sherene Razack, Looking White People into the Eye: Gender, Race, and Culture in Courtrooms and Classrooms (Toronto: University of Toronto Press, 1998) at 158. Ibid. at 159. She emphasizes a politics of accountability rather than a politics of inclusion. Linda Alcoff, “Cultural Feminism versus Post-Structuralism: The Identity Crisis in Feminist Theory,” 13 SIGNS 405 (1988), at 433. See e.g. Lavell. See Andrews, Turpin, Eldridge, Law, Kapp See, for example, discussion in Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791. See, for example, Hester Lessard “The Empire of the Lone Mother: Parental Rights, Child Welfare law and State Restructuring” (2002) 39 Osgoode Hall L.J. 717 at 745. [2002] 4 S.C.R. 429. Ibid. at para. 23. Ibid. at para. 42. Ibid. at para. 27 Ibid. at para. 111. Ibid. at para. 130. Ibid. at para. 358. See also the dissenting opinion of Bastarache J., who concluded that age-based discrimination regarding a critically important interest had occurred in this case. R. v. Oakes, [1986] 1 S.C.R. 103. On the connection between democracy and section 1, see Martha Jackman, “Protecting Rights and Promoting Democracy: Judicial Review Under Section 1 of the Charter” (1996) 34 Osgoode Hall Law Journal 661. See, for example, Gosselin, Kapp. See David Cameron and Janice Stein, Street Protests and Fantasy Parks: Globalization, Culture, and the State (Vancouver: UBC Press, 2002). See Sherene Razack, “Imperiled Muslim Women, Dangerous Muslim Men and Civilized Europeans: Legal and Social Responses to Forced Marriages,” (2004) 12 Feminist Legal Studies 129. See, for example, Anthony Giddens, The Third Way: The Renewal of Social Democracy (Cambridge: Polity Press, 1998) [The Third Way]. Mel Watkins, “Politics in the Time and Space of Globalization,” in Wallace Clement and Leah Vosko eds., Changing Canada: Political

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Economy as Transformation (Montreal and Kingston: McGill-Queen’s University Press, 2003) 3 at 19–20. Giddens, The Third Way, at 66. As this list of values reveals, Giddens is seeking to incorporate a diverse range of political and social thought, while still retaining some of the key protective premise of traditional social democracy. As Giddens, ibid. at 102: “In a society where work remains central to self-esteem and standard of living, access to work is one main context of opportunity. Education is another.” See also, Hugh Collins, “Discrimination, Equality and Social Exclusion,” (2003) 66 Modern Law Review 16, at 22. Giddens, ibid. at 109. Ibid. at 117. Some scholars have suggested that we need a fourth way narrative to resist the neo-liberal risks of third way politics: see Gilles Trudeau et al., “Rethinking Public Policy Narratives on Work,” (Presentation to crimt Conference, What Public Policies for Work in a Global Era? hec Montreal, 24 May 2007) [unpublished]. Giddens, The Third Way at 122. Jane Jenson and Denis Saint-Martin, “Building Blocks for a New Welfare Architecture: From Ford to lego?” (Paper Prepared for Annual Meeting of the American Political Science Association, Boston, MA, August 2002). Online at: http://www.allacademic.com/meta/ p_mla_apa_research_citation/0/6/5/2/9/p65294_index.html (accessed 27 January 2010). Ibid. at 1. Ibid. at 9, citing Wolfgang Streeck (1999) “Competitive Solidarity: Rethinking the ‘European Social Model’,” MPlfG Working Paper 99/8, Sept 1999, Max Planck Institute for the Study of Societies, on the concept of supply side egalitarianism. Ibid. See David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001) at 124–7. Garland relies on Michel Foucault’s concept of governmentality, outlined in Foucault’s article “Governmentality,” in Graham Burchell et. al., eds. The Foucault Effect (Hemel Hempstead: Harvester Sheatsheaf, 1992). Garland, ibid. at 124. As outlined in chapter 1, parallel regulatory shifts occurred in the human rights domain which, in the 1960s and 70s, relied predominantly on state-enforced command and control

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policies and focused on the individual complaints process, which were in turn investigated and controlled by state-financed human rights commissions. It is only in the 1980s and beyond that we see the emergence of employment equity and pay equity regimes, premised on the channeling of responsibility onto employers to redress systemic inequalities in their institutions. See Colleen Sheppard, “The Promise and Practice of Human Rights: Reflections on the Quebec Charter of Human Rights and Freedoms,” in N. Kasirer and R. MacDonald eds., Mélanges Paul-André Crépeau (Yvon Blais: 1997) 641–78. 92 Garland, The Culture of Control at 126. Garland’s insights in this regard parallel a growing scholarship on legal pluralism See, for e.g., Roderick A. Macdonald, “Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism,” (1998) 15 Arizona Journal of International and Comparative Law 69; see also Colleen Sheppard “Equality Rights and Institutional Change: Insights from Canada and the United States,” (1998) 15 Arizona Journal of International and Comparative Law 143. 93 Garland, The Culture of Control at 126. 94 See, for example, Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016; Eldridge. 95 Policy Research Initiative, Social Capital: Building on a NetworkBased Approach (Draft discussion paper) (Ottawa: PRI, October 2003) at 2. 96 See, for example, Pierre Bourdieu, “The Forms of Capital,” in John Richardson, ed., Handbook of Theory and Research for the Sociology of Education (New York: Greenwood Press), 241. 97 See James S. Coleman, The Foundations of Social Theory (Cambridge: Harvard University Press, 1990). 98 Policy Research Initiative, at 6, citing Robert Putnam, Making Democracy Work: Civic Traditions in Modern Italy (Princeton: Princeton University Press, 1993), at 167. 99 The partnership approach to social governance is in some cases simply a euphemism for privatization and a refusal on the part of the state to assume full responsibility for certain government programs and organizations. 100 Wendy Larner and David Craig, “After Neo-Liberalism? Local Partnerships and Social Governance in Aotearoa New Zealand,” Working Paper 6, Fostering Social Cohesion: A Comparison of New Policy Strategies, at 2.

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101 Ibid. at 17. See also Martha Minow, Partners, Not Rivals: Privatization and the Public Good (Boston: Beacon Press, 2003). 102 Larner and Craig, “After Neo-Liberalism?” at 24. 103 Ibid. at 7. 104 The Royal Commission on Aboriginal Peoples condemned the historical assimilationist bias in Canadian government policy and articulated an alternative approach premised on respect for the unique heritage of Aboriginal peoples and their “right to cultural continuity.” See Canada, Royal Commission on Aboriginal Peoples, Report Highlights: People to People, Nation to Nation (Ottawa: The Royal Commission on Aboriginal Peoples (rcap), 1996). See, for example, Mahe v. Alberta, [1990] 1 S.C.R. 342; Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3. 105 Law at paras. 62–75. 106 Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge: Harvard University Press, 1996), note at 26: “Procedural and constitutional democrats agree that their disagreement turns on the question of whether democratic procedures have priority over just outcomes or just outcomes have priority over democratic procedures. Deliberative democracy rejects this dichotomy. It sees deliberation as an outcome-oriented process.” 107 This contextual factor is currently one of the four identified in Law. Situating the individual in her or his social/collective/group context is critical to discrimination law, which prohibits group-based harms and exclusion. 108 Justice Laskin of the Ontario Court of Appeal formulated the first contextual factor in this way in Falkiner v. Ontario (Minister of Community and Social Services and A.G. Ontario) (2002), 212 DLR 4th 633 (ONCA) at para. 99. See also, Kathryn Abrams, “Sex Wars Redux: Agency and Coercion in Feminist Legal Theory,” (1995) Columbia Law Review. 304. For a discussion of a distinction between relationships of temporary versus permanent inequality, see chapter 5. 109 See chapter 6. See also Iris Marion Young, Inclusion and Democracy (Oxford; New York: Oxford University Press, 2000). 110 Some of the ideas emerging on the duty to consult and Aboriginal rights could be applied to equality: see, for example, Thomas Isaac, “The Crown’s Duty to Consult and Accommodate Aboriginal People,” (2003) 61 The Advocate 865. 111 See British Columbia (Public Service Relations Commission) v. British Columbia Government Services Employee Union (BCGSEU),

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[1999] 3 S.C.R. 3. See David Lepofsky, “The Duty to Accommodate: A Purposive Approach,” (1992) 1 Canadian Labour Law Journal 1 (outlining the procedural and substantive dimensions of the duty to accommodate). 112 See, for example, Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, in which a Sikh student was prohibited from wearing a kirpan, Justices Abella and Deschamps favoured an administrative law approach for scrutinizing the fairness of a school board’s decision-making process, noting: In making its determinations, the school board must take all fundamental values into consideration, including not only security, but also freedom of religion and the right to equality. The prohibition on the wearing of a kirpan cannot be imposed without considering conditions that would interfere less with freedom of religion. In the case at bar, the school board did not sufficiently consider either the right to freedom of religion or the accommodation measure proposed by the father and the student. … By disregarding the right to freedom of religion, and by invoking the safety of the school community without considering the possibility of a solution that posed little or no risk, the school board made an unreasonable decision.

chapter three 1 Bertha Wilson, “Women, the Family and the Constitutional Protection of Privacy,” (1992) 17 Queen’s Law Journal 5, at 13. 2 Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 [Edmonton Journal] at para. 52 (contextual approach relied upon in interpreting section 1 of the Charter); see also R. v. Lavallee, [1990] 1 S.C.R. 852 [Lavallee]. 3 Edmonton Journal, ibid. at para. 51. 4 Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 [Law]. 5 Beverley Baines, “Law v. Canada: Formatting Equality,” (2000) 11: 3 Constitutional Forum 65; Daniel Proulx, “Les droits à l’égalité revus et corrigés par la Cour suprême du Canada dans l’arrêt Law: un pas en avant ou un pas en arrière,” (2001) 61 revue du Barreau 187; Emily Grabham “Law v. Canada: New Directions for Equality Under the Canadian Charter?” (2002) 22 Oxford Journal of Legal Studies 641. 6 See Edwards v. A.G. Canada [1930] A.C. 124 (jcpc), where the Judicial Committee of the Privy Council characterized the Canadian

Notes to pages 67–9

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Constitution as a “living tree capable of growth and expansion within its natural limits,” to be given a “large and liberal interpretation.” Sandra Harding, “Rethinking Standpoint Epistemology: What Is ‘Strong Objectivity’?” in Linda Alcoff and Elizabeth Potter, eds., Feminist Epistemologies (New York: Routledge, Chapman and Hall, 1993), 49 at 56 [“Rethinking Standpoint Epistemology”]; see also Katherine Bartlett, “Feminist Legal Methods,” (1990) 103 Harvard Law Review, 829; Sandra Harding, ed., The Feminist Standpoint Theory Reader: Intellectual and Political Controversies (New York: Routledge, 2004). See Peter Halewood, “White Men Can’t Jump: Critical Epistemologies, Embodiment, and the Praxis of Legal Scholarship,” (1995) 7 Yale Journal of Law and Feminism, 1. Harding, “Rethinking Standpoint Epistemology” at 54–5. Catharine MacKinnon et al., “Feminist Discourse, Moral Values, and the Law: A Conversation,” (1985) 34 Buffalo Law Review 11 at 62–3. See generally Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, ma: Harvard University Press, 1982). See also Bruce Feldthusen, “The Gender Wars: ‘Where the Boys Are’,” (1990) 4 Canadian Journal of Women and the Law, 66. See Colleen Sheppard and Sarah Westphal, “Narratives, Law and the Relational Context: Exploring Stories of Violence in Young Women’s Lives,” (2000) 15 Wisconsin Women’s Law Journal, 335. See Iris Marion Young, “Polity and Group Difference: A Critique of the Ideal of Universal Citizenship,” in Cass R. Sunstein, ed., Feminism and Political Theory (Chicago: University of Chicago Press, 1990) at 117–4 at 128. Diana Fuss, Essentially Speaking: Feminism, Nature and Difference (New York: Routledge, 1989) at 118. Patricia Monture, “Reflecting on Flint Women,” in Richard Devlin, ed. Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery, 1991), 361; see also, Marianne Valverde, Law’s Dream of a Common Knowledge (Princeton: Princeton University Press, 2003). Patricia Ewick and Susan Silbey, “Subversive Stories and Hegemonic Tales: Toward a Sociology of Narrative,” (1995) 29 Law and Society Review 197 [“Subversive Stories and Hegemonic Tales”] at 212–13. See discussion in Sheppard and Westphal, “Narratives, Law and the Relational Context.” Kim Scheppele, “Foreword: Telling Stories,” (1989) 87 Michigan Law Review, 2073. 

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17 Martha Minow, “Surviving Victim Talk,” (1993) 40 ucla Law Review, 1411; Linda Alcoff and Laura Gray, “Survivor Discourse: Transgression or Recuperation?” (Winter 1993) 18 Signs, 260. 18 Sherene Razack, “Storytelling for Social Change,” in Himani Bannerji, ed., Returning the Gaze: Essays on Racism, Feminism and Politics (Toronto: Sister Vision Press, 1993), 83 at 97. See also Linda Alcoff, “The Problem of Speaking for Others,” (1991–92) 20 Cultural Critique, 5. 19 See Dianne Pothier, “M’Aider, Mayday: Section 15 of the Charter in Distress” (1996), 6 National Journal of Constitutional Law 295, on the quantitative and qualitative aspects of adverse effect discrimination. See also Colleen Sheppard, “Women as Wives: Immigration Law and Domestic Violence,” (2000) 26 Queen’s Law Journal, 1. 20 For an overview of how scholarship on legal pluralism helps to inform an analysis of the interaction between formal law and institutional practices, see Sally Engle Merry, “Legal Pluralism,” (1988) 22 Law and Society Review, 869 [“Legal Pluralism”]; see also, Sally Falk Moore, “Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study,” in Law as Process (London: Routledge, 1978), 54. 21 Martha-Marie Kleinhans and Roderick A. Macdonald, “What Is a Critical Legal Pluralism?” (1997) 12:2 Canadian Journal of Law and Society, 25. 22 John Griffiths, “What Is Legal Pluralism?” (1986) 24 Journal of Legal Pluralism, 1. 23 Merry, “Legal Pluralism,” 881. 24 Ibid. 25 Ibid. at 883. 26 Ibid. citing Peter Fitzpatrick, “Law, Plurality, and Underdevelopment,” in David Sugarman, ed., Legality, Ideology, and the State (London: Academic Press, 1983) at 159. 27 Ibid. at 885. 28 Linda Hamilton Kreiger, “Afterword: Socio-Legal Backlash,” (2000) 21 Berkeley Journal of Employment and Labour Law 476 at 484 [“Afterword: Socio-Legal Backlash”]. See also, Mary Douglas, How Institutions Think (Syracuse: Syracuse University Press, 1986). 29 Kreiger, ibid. at 484. 30 Examples of socio-legal capture in the Canadian context include: the high threshold for proving discrimination in light of the human dignity threshold, technocratization of political struggles (e.g., pay equity and gender wage justice), delay and lack of control in human rights

Notes to pages 72–4

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processes, tokenism and unequal structures of representation. See Colleen Sheppard, “The Promise and Practice of Human Rights: Reflections on the Quebec Charter of Human Rights and Freedoms,” in N. Kasirer & R. MacDonald eds., Mélanges Paul-André Crépeau (Cowansville, Qc.: Yvon Blais, 1997) at 663. Kreiger, “Afterword: Socio-Legal Backlash,” at 486, citing the idea of the “endogeneity of law,” developed by Lauren B. Edelman, “Constructed Legalities: Socio-Legal Fields and the Endogneity of Law,” in Walter W. Powell and Daniel L. Jones eds., Bending the Bars of the Iron Cage: Institutional Dynamics and Processes (Chicago: University of Chicago Press, 2003). Kreiger, “Afterword: Socio-Legal Backlash,” at 493. Critiques of affirmative action as reverse discrimination are premised on backlash rather than capture. Similarly, opponents to same sex marriage use backlash rather than capture to resist the transformative implications of a more inclusive definition of marriage. Susan Sturm, “Owen Fiss, Equality Theory and Judicial Role,” (2003) Issues in Legal Scholarship, The Origins and Fate of Antisubordination Theory: art. 18 at 7.[“Owen Fiss, Equality Theory and Judicial Role”]; see also, Susan Sturm, “Second Generation Employment Discrimination: A Structural Approach,” (2001) 101 Columbia Law Review, 458. Sturm, “Owen Fiss, Equality Theory and Judicial Role.” Ibid. at 5. Martha Minow illustrates this idea by considering possible responses to the presence of a hearing-impaired child in a classroom. She suggests that exploring the possibility of conducting the class simultaneously in sign and spoken language would locate the problem of inequality in the institutional relations rather than in the hearing impaired child; “Learning to Live with the Dilemma of Difference: Bilingual and Special Education,” (1985), 48 Law and Contemporary Problems 157 at 207–8. See Iris Marion Young, Inclusion and Democracy (Oxford: Oxford Univ. Press, 2000); Simone Chambers, “New Constitutionalism,” in Ronald Beiner and Wayne Norman, eds. Canadian Political Philosophy (Toronto: Oxford University Press, 2001), 63; James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995). Dennis M. Patterson, “Law’s Pragmatism: Law as Practice and Narrative,” (1990) 76 Virginia Law Review 937, at 941, in which he

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advocates legal pragmatism as a way to sidestep the void left by the demise of foundationalism. Danielle Pinard has documented the tendency towards macrocontextualism, particularly in the legal decisions of Madame Justice L’Heureux-Dubé. See Danielle Pinard, “La méthode contextuelle,” (2002) 81 Canadian Bar Review 323 [“La méthode contextuelle”]; Danielle Pinard, “Charter and Context: The Facts for Which We Need Evidence and the Mysterious Other Ones,” (2001) 14 Supreme Court Law Review, 163. Martha Minow and Elizabeth V. Spelman, “In Context,” (1990) 63 Southern California Law Review 1597 at 1605. Ibid. at 1628. R. v. S. (R.D.), [1997] 3 S.C.R. 484 [R.D.S.] Ibid. at para. 47. Ibid. at para. 32 citing Jennifer Nedelsky, “Embodied Diversity and Challenges to the Law,” (1997) 42 McGill Law Journal 91, at 107. See Hannah Arendt, Lectures on Kant’s Political Philosophy, ed. by R. Beiner (Chicago: University of Chicago Press, 1982), and Hannah Arendt, Between Past and Future: Six Exercises in Political Thought (London: Faber and Faber, 1961). Nedelsky, “Embodied Diversity and Challenges to the Law” at 107. See Owen M. Fiss, The Irony of Free Speech (Cambridge: Harvard University Press, 1996). On the larger structural and systemic context of legal debates regarding reproductive rights, see Catharine A. MacKinnon, “Reflections on Sex Equality Under the Law,” (1991) 100 Yale Law Journal, 1281. See also, Donna Greschner, “Abortion and Democracy for Women: A Critique of Tremblay v. Daigle,” (1990) 35 McGill Law Journal, 633. See Moge v. Moge [1992] 3 S.C.R. 813, per L’Heureux-Dube J. Pinard, “La méthode contextuelle,” at 351 describes Justice L’Heureux-Dube as “la principale protagoniste de ce développement empirique de la méthode contextuelle.” See chapter 4, below. See also, Colleen Sheppard, “Systemic Inequality and Workplace Culture: Challenging the Institutionalization of Sexual Harassment,” (1995) 3 Canadian Labour and Employment Law Journal, 249. See discussion in Colleen Sheppard, “Systemic Discrimination and Gender Inequality: A Life Cycle Approach to Girls’ and Women’s Rights” in Errol P. Mendes and Sakunthala Srighanthan, eds. Confronting Discrimination and Inequality in China – Chinese and Canadian Perspectives (Ottawa: University of Ottawa Press, 2009).

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51 Rosalie Silberman Abella. Equality in Employment: A Royal Commission Report (Ottawa: Ministry of Supply and Services Canada, 1984) [Abella Report]. 52 In this regard, Justice Abella cites the International Labour Organization’s 1981 Recommendation Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities. See Abella Report at 181, note 14. 53 Ibid. at 182 and 192. 54 See, for example, Diane-Gabrielle Tremblay, Working Time and WorkFamily Balancing: A Canadian Perspective, Canada Research Chair on Socio-Organizational Challenges of the Knowledge Economy (Montreal: Télé Université, Research Directorate, 2003). 55 For a review of a Canadian national child care program, see Ken Battle and Sherri Torjman, “Architecture for National Child Care,” Caledon Institute of Social Policy, November 2002. 56 OECD Review Team, Early Childhood Education and Care Policy, Canada, Country Note (OECD Directorate for Education: 2003) [OECD Early Childhood Education, Canada Report], drawing on the information provided in Gillian Doherty, Martha Friendly, and Jane Beach, Early Childhood Education and Care Policy - Background Report of Canada (OECD, 2003). 57 Jane Jenson, Rianne Mahon, and Susan Phillips, “No Minor Matter: The Political Economy of Childcare in Canada,” in Wallace Clement and Leah Vosko, eds., Changing Canada: Political Economy as Transformation (Montreal: McGill-Queen’s University Press, 2003) 135–60 at 149: “Childcare is a publicly provided citizenship right in only one province: Quebec.” 58 Abella Report at 131. 59 Jane Jenson and Denis Saint-Martin. “Building Blocks for a New Welfare Architecture: Is lego TM the Model for an Active Society?” Fostering Social Cohesion Project, citing Wolfgang Streeck (1999), Competitive Solidarity: Rethinking the ‘European Social Model,’ MPlfG Working Paper 99/8, Sept 1999, Max Planck Institute for the Study of Societies, on the concept of supply side egalitarianism. On the shift from a social welfare to a social investment state, see Anthony Giddens, The Third Way: The Renewal of Social Democracy (Cambridge, MA: Polity Press, 1998). 60 Canada, Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship, vol. 2 (Ottawa: Supply and Services Canada, 1996), at 933–4. See also R. Dupuis, “Aboriginal Peoples and Employment Equity,” in Sharing the Harvest: The Road to

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Self-Reliance (Report of the National Roundtable on Aboriginal Economic Development and Resources) (Ottawa: Ministry of Supply and Services, 1993), 165–74. See, for example, R.v. Kapp, [2008] 2 S.C.R. 483, Apsit v. Manitoba (Human Rights Commission) 1987 M.J. No. 553 (Man. Q.B). See generally, Report of the Royal Commission on Aboriginal Peoples, ibid. See also Colleen Sheppard, “Challenging Systemic Racism: Affirmative Action and Equity for Racialized Communities and Aboriginal Peoples in Canada” in Elaine Kennedy-Dubourdieu ed. Race and Inequality: World Perspectives on Affirmative Action (Aldershot, UK:Ashgate Press: 2006) 43–61. International Labour Organization, “Supporting Workers in the Informal Economy: A Policy Framework,” by Martha Alter Chen, Renana Jhabvala and Frances Lund, in Working Papers on the Informal Economy (Geneva: Employment Sector, International Labour Office, 2001) at 2. See also Cynthia Cranford, Leah F. Vosko, and Nancy Zukewich, “The Gender of Precarious Employment in Canada,” (2003) 58:3 Relations industrielles/Industrial relations, 454; Kerry Rittich, Vulnerability at Work: Legal and Policy Issues in the New Economy (Ottawa: Report for the Law Commission of Canada, January 25, 2004); and Leah Vosko, Temporary Work: The Gendered Rise of a Precarious Employment Relation (Toronto: University of Toronto Press, 2000); Guylaine Vallée, Towards Enhancing the Employment Conditions of Vulnerable Workers: A Public Policy Perspective (Ottawa: Canadian Public Policy Networks, 2005). Adelle Blackett and Colleen Sheppard, “Collective Bargaining and Equality: Making the Connections,” (2003), 142 International Labour Review 419 at 420. See also Cranford et al., “The Gender of Precarious Employment in Canada;” Fiona Sampson, “Globalization and the Inequality of Women with Disabilities,” (2003) Journal of Law and Equality, 16. David Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Stanford: Stanford University Press, 1995) at 283. For an extended discussion of the importance of developing accountability mechanisms beyond the state, see Adelle Blackett, “Toward Social Regionalism in the Americas,” (2002) 23 Comparative Labor Law and Policy Journal, 901. Sassen, Saskia. “The Participation of States and Citizens in Global Governance.” (2003) 10 Indiana Journal of Global Legal Studies 5.

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67 Guy Rocher, “[c]’est précisément dans l’analyse de ces interactions entre le droit et le milieu social, économique, politique et culturel que la sociologie du droit trouve sa fonction, sa raison d’être.” Études de sociologie du droit et de l’étique (Montréal: Thémis, 1996) at xi. [Free translation] 68 Ibid. at 64. Pierre Noreau has articulated a similar conception of law as both the product of and constitutive of social relations. See “Comment la législation est-elle possible? Objectivation et subjectivation du lien social,” (2001) 47 McGill Law Journal, 195. 69 To quote Rocher directly: a human rights charter “est un instrument d’action à l’intérieur du droit, et au-delà elle est un instrument d’action à l’intérieur de l’État, et au-delà elle est un instrument d’action dans nos vies personnelles et au-delà, dans nos solidarités.” (“La charte québécoise est un instrument d’action individuelle et collective,” (1992), 15:1 Forum : droits et libertés 3 at 18).

chapter four 1 Margaret Thornton, “Sexual harassment Losing Sight of Sex Discrimination,” (2002) Melbourne University Law Review 22 [“Sexual Harassment Losing Sight”]. 2 Constance Backhouse and Leah Cohen, The Secret Oppression: Sexual Harassment of Working Women (Toronto: Macmillan of Canada, 1978) [Secret Oppression]. 3 Catharine MacKinnon, The Sexual Harassment of Working Women (New Haven: Yale University Press, 1979) [Sexual Harassment of Working Women]. For a review of sexual harassment in the US commemorating the 20th anniversary of the publication of MacKinnon’s book, see Catharine MacKinnon and Reva B. Siegal, eds. Directions in Sexual Harassment (New Haven: Yale University Press, 2004). 4 (Ont. 1980), 1 C.H.R.R. D/155, 27 L.A.C. (2d) 227 [Shime]. 5 Ibid. at D/156; cited with approval in Janzen v. Platy Enterprizes, [1989] 1 S.C.R. 1252 [Janzen]. 6 See Janzen. 7 See Aggarwal, Arjun P. and Madhu M. Gupta, Sexual Harassment in the Workplace, 3d ed. (Toronto and Vancouver: Butterworths, 2000) [Sexual Harassment in the Workplace]. 8 See Colleen Sheppard. Rights, Respect and Dignity: Interface of Labour Standards and Human Rights, Research Report, prepared for the Federal Labour Standards Task Force (Chair: Harry Arthurs) (November, 2005). See also, Quebec Act Respecting Labour Standards,

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R.S.Q. c. N-1.1, ss. 81.18–81.20 and 123.6–123.16 (2004); Saskatchewan Occupational Health and Safety (Harassment Prevention) Amendment Act, 2007, S.S. 1993, c.O-1.1, as amended. Occupational Health and Safety Act, 1993, R.S.S., c. O-1.1; Carla Gonçalves Gouveia, “From Laissez-faire to Fair Play: Workplace Violence and Psychological Harassment,” (2007) 65 University of Toronto Faculty of Law Review, 137, arguing for stronger legislative remedies for psychological harassment premised on the concept of dignity at work. MacKinnon, Sexual Harassment of Working Women. See also, Wendy Pollack, “Sexual Harassment: Women’s Experience vs. Legal Definitions,” (1990) 13 Harvard Women’s Law Journal, 35 [“Women’s Experience vs. Legal Definitions”]. Janzen at 1284. See discussion in Kathleen Gallivan, “Sexual Harassment after Janzen v. Platy: The Transformative Possibilities,” (1991) 49 University of Toronto Faculty of Law Review 27 at 56, critiquing the lack of clarity on the meaning of unwelcome conduct in the Janzen case. For a general discussion of the perpetrator perspective in anti-discrimination law, see Alan D. Freeman, “Antidiscrimination Law: A Critical Review,” in David Kairys, ed., The Politics of Law: A Progressive Critique (New York: Pantheon Books, 1982), 96–116. Aggarwal and Gupta, Sexual Harassment in the Workplace at 121, citing Henson v. City of Dundee, 682 F.wd. 897at 903 (11th Cir. 1982). See also discussion of “unwelcome” in Meritor Savings Bank v. Vinson, 106 S.Ct. 2399 (1986); for a review of this leading decision, see Carrie N. Baker, The Women’s Movement Against Sexual Harassment (Cambridge: Cambridge University Press, 2008) at 162–76 [The Women’s Movement Against Sexual Harassment]. See Aggarwal and Gupta, ibid. at 117, citing Olarte v. Commodore Business Machines Ltd. (Ont. 1983), 4 C.H.R.R, D/6205 (Cumming); see also, Maurice Drapeau, Le harcèlement sexuel au travail (Cowansville: Yvon Blais, 1991) at 90–2. Section 7 of the Ontario Human Rights Code R.S.O. 1990, c. H.19, for example, provides: “7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee. (3) Every person has the right to be free from, (a) a sexual solicitation or advance made by a person in a position to confer, grant, or deny a benefit or advancement to the person where

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the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome” [emphasis added]. See also discussion in Innis Christie, Geoffrey England, and Brent Cotter, Employment Law in Canada, 2d. ed. (Toronto: Butterworths, 1993) at 366–9. See Catharine MacKinnon, “Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence” (1983) 8 Signs, 635 (challenging the legitimacy of a legal definition of rape that is premised on the alleged perpetrator’s understanding of whether or not there was consent). In the Canadian context, see R. v. Pappajohn, [1980] 2 S.C.R. 782. Backhouse and Cohen, Secret Oppression at 108–9, remind us that the alleged rape occurred while the woman was working as a real estate agent. See, for example, Eileen M. Blackwood, “The Reasonable Woman Standard in Sexual Harassment Law and the Case for Subjectivity,” (1992) 16 Vermont Law Review, 1005. Nitya Duclos (Iyer), “Disappearing Women: Racial Minority Women in Human Rights Cases,” (1992) 6 Canadian Journal of Women and Law 25 at 40 [“Disappearing Women”]. Of note is the tendency for protections against psychological harassment to individualize the inquiry rather than enhancing an intersectional group-based approach. Duclos (Iyer) also comments, ibid. at 33–5: “Similarly, Canadians have very different stereotypes of the sexuality of white women compared with Asian women or First Nations women. It follows that there are likely to be differences between situations where a white man sexually harasses a white woman and those where a white man harasses a racial minority woman, or where the harasser is non-white but the complainant is; or, again, where neither party is white and they belong to the same or to different minority groups. Yet sexual harassment doctrine treats all of these situations as if they were the first case – as if a white man had harassed a white woman.” See also discussion of racism and sexual harassment in Elvia R. Arriola, “’What’s the Big Deal?’ Women in the New York City Construction Industry and Sexual Harassment Law, 1970–1985,” (1990) 22 Columbia Human Rights Law Review 21 at 42 [“What’s the Big Deal?]. On the pervasiveness of sexual harassment, the problem of underreporting and the lack of disciplinary sanctions against perpetrators, see, for example, Danielle Savoie and V. Larouche, “Le Harcèlement Sexuel au Travail: Résultats de Deux Études Québécoises,” (1990) 45 Relations Industrielles, 38.

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19 For a discussion in the criminal law context of how the victim feels put on trial, and how gender stereotypes risk undermining her credibility, see Seaboyer v. R., [1991] 2 S.C.R. 577. 20 Ratna Kapur, “Sexcapades and the Law,” (2001) at para. 5. 21 For a comprehensive overview of remedies for sexual harassment, see Aggarwal and Gupta, Sexual Harassment in the Workplace at 329–88. 22 [1987] 2 S.C.R. 84. 23 Ibid. at para. 10. 24 Ibid. at para. 11. These remarks were cited with approval in Janzen. Employer liability, however, will only arise once there has been a finding of sexual harassment by specific individuals, or employer inaction in the face of complaints of sexual harassment, thus limiting the scope of La Forest J.’s remarks. 25 See Susan Sturm, “Second Generation Employment Discrimination: A Structural Approach,” (2001) 101 Columbia Law Review 458 at 480–4. 26 The shortcomings of these internal complaints mechanisms were illustrated in a British Columbia case where harassment by a superior officer of the Royal Canadian Mounted Police of a female officer led to depression so severe that it ended her career. However, having been medically discharged from her position as a result of the depression, the female officer was left without access to internal rcmp grievance procedures. She ultimately pursued a successful claim in the British Columbia court system based on civil negligence principles. See Sulz v. Minister of Public Safety and Solicitor General, (2006) 276 D.L.R. (4th) 391 (B.C.C.A.). See also, Joanna L. Grossman, “The Culture of Compliance: The Final Triumph of Form over Substance in Sexual Harassment Law,” (2003) 26 Harvard Women’s Law Journal, 3, for a discussion of the limitations of employer policies on harassment. 27 Recourse to workers’ compensation schemes for remedying the economic losses that can result from sexual harassment reveals the need to examine more closely the question of compensation for the harassed employee: see discussion in Fay Faraday, “Dealing with Sexual Harassment in the Workplace: The Promise and Limitations of Human Rights Discourse,” (1994) 32 Osgoode Hall L.J. 33 at 61–2. 28 [1987] 1 S.C.R. 1114 [Action Travail des Femmes]. 29 For further documentation of the nature of sexual harassment experienced by women in non-traditional jobs, see Carrie N. Baker, The Women’s Movement Against Sexual Harassment, chapter 4 (discussing blue-collar workers and hostile environment harassment); Jean Reith Schroedel, Alone in a Crowd: Women in the Trades Tell their Stories

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(Philadelphia: Temple University Press, 1985) [Alone in a Crowd]; Arriola, “What’s the Big Deal?”; Pollack, “Women’s Experience vs. Legal Definitions”; Ellen Symons, “Under Fire: Canadian Women in Combat,” (1990) 4 Canadian Journal of Women and the Law 477, Mick Lowe, “Women of the Mines,” The Financial Post Magazine, January 1995, 20 [“Women of the Mines”]; Dave Baigent, “Fitting In: The Conflation of Firefighting, Male Dominance and Harassment,” in James E. Gruber and Phoebe Morgan, eds. In the Company of Men: Male Dominance and Sexual Harassment (Boston: Northeastern University Press, 2005) at 45. Action Travail des Femmes at 1124. Testimony of Carla Nemeroff, reproduced in Action travail des femmes at 1123. For a discussion of the distinction, see Aggarwal, Sex Discrimination at 116–20. Almost every woman interviewed in Jean Schroedel’s book, Alone in a Crowd, recounts experiences of sexual harassment. See Note, “Pornography, Equality, and a Discrimination-Free Workplace: A Comparative Perspective,” (1993) 106 Harv. L. Rev. 1075; Pollack, “Women’s Experience vs. Legal Definitions.” See also, Janine Benedet, “Pornography as Sexual Harassment in Canada,” in Catharine MacKinnon and Reva Seigal eds., Directions in Sexual Harassment Law (New Haven: Yale University Press, 2004), 417–36. Pond v. Canada Post Corporation (1994), 94 C.L.L.C. 17,024. Quoted in Schroedel, Alone in a Crowd at 60. See also, Cynthia Cockburn, Machinery of Dominance: Women, Men and Technical Know-How (Boston: Northeastern University Press, 1988) at 174, discussing pornography on computers. Schroedel, Alone in a Crowd at 170. Lowe, “Women of the Mines,” at 26–7. The employer, Inco, responded by sending a personal letter to all employees emphasizing the importance of nourishing the dignity and self-esteem of all employees and attaching the sexual harassment policy. The graffiti continued. Wiens filed a human rights complaint. Four male co-workers subsequently filed sexual harassment charges against her, maintaining that she used foul language and spent too much time in the washroom. Sheila McIntyre, “Gender Bias Within the Law School: ‘The Memo’ and Its Impact,” (1987) 2 Canadian “Journal of Women and the Law 362 at 383–4. Vicki Schultz, “Reconceptualizing Sexual Harassment,” (1997–1998) 107 Yale Law Journal 1683 at 1755.

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Quoted in Schroedel, Alone in a Crowd at 59–60. Arriola, “What’s the Big Deal?”; Schroedel, Alone in a Crowd at 170. Action Travail des Femmes. Quoted in Lowe, “Women of the Mines” at 26. See Marlene Kadar, “Sexual Harassment as a Form of Social Control,” in Maureen Fitzgerald, Connie Guberman, and Margie Wolfe, eds., Still Ain’t Satisified! Canadian Feminism Today (Toronto: The Women’s Press, 1982) 168 at 170. See also, the collection of poems of Kate Braid, Covering Rough Ground (Vancouver: Polestar Books, 1991). Debbie Field, “Rosie the Riveter Meets the Sexual Division of Labour,” in Fitzgerald et al., ibid., 210 at 215. Dorothy Sue Cobble has defined “work culture” as “[t]he values, ideas, and practices developed and transmitted by and within a particular occupational group” in Dishing It Out: Waitresses and the Unions in the Twentieth Century (Chicago: University of Illinois Press, 1991) at 51 [Dishing It Out]. See also, Herbert Gutman, Work, Culture and Society in Industrializing America (New York, 1974), E.P. Thompson, The Making of the English Working Class (New York, 1973), and Clifford Geertz, The Interpretation of Cultures (New York, 1973). Schroedel, Alone in a Crowd at 58. As Angela Harris has noted, ”the paradigm experience of rape for black women has historically involved the white employer in the kitchen or bedroom as much as the strange black man in the bushes. During slavery, the sexual abuse of black women by white men was commonplace. Even after emancipation, the majority of working black women were domestic servants for white families, a job which made them uniquely vulnerable to sexual harassment and rape.” See “Race and Essentialism,” (1990) 42 Stanford Law Review 581 at 598–9. See also, Patricia Williams, The Alchemy of Race and Rights: Diary of a Law Professor (Cambridge: Harvard University Press, 1991) at 216–17, recounting the rape and impregnation of her great-great-grandmother by a white lawyer and slave owner. See Backhouse and Cohen, Secret Oppression at 66–8; and Genevieve Leslie, “Domestic Service in Canada, 1880–1920,” in Janice Acton, Penny Goldsmith, and Bonnie Shepard, eds., Women at Work (Ontario) 1850–1930 (Toronto: Women’s Press, 1974), 71–126. See also, Lori Rotenberg, “The Wayward Worker: Toronto’s Prostitute at the Turn of the Century,” in Acton, Goldsmith,and Shepard, eds., ibid. 33–70, where they analyze data from the 1913 Social Survey Commission which revealed that a large number of prostitutes worked

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in domestic service prior to becoming prostitutes. One of the factors they identify to explain the connection between prostitution and domestic service was the sexual exploitation of domestic workers. See discussion in Audrey Macklin, “Foreign Domestic Worker: Surrogate Housewife or Mail Order Servant,” (1992) 37 McGill L.J. 681 at 714– 15, and Makeda Silvera, Silenced: Talks with Working Class Caribbean Women about Their Lives and Struggles as Domestic Workers in Canada, 2d ed. (Toronto: Sister Vision, 1989) at 55–8, 84–6 [Silenced]. Silvera, ibid. Ibid. at 55–6. Ibid. at 54. For a discussion of the live-in-caregivers program in Canada, see Sabaa Khan, “Protecting the Human Rigths of Migrant Caregivers in Canada,” (2009) 24 Canadians J. of Law and Soc. 23 at 27-8. See Colleen Sheppard and Sarah Westphal, “Equity and the University: Learning from Women’s Experience,” (1991) 5 Canadian Journal of Women and the Law, 5 at 20. Cobble, Dishing It Out at 55. Ibid. at 54. Such co-worker support contrasts to the very isolated and non-supportive environment of some women employed in traditionally male jobs. Cobble, in Dishing It Out, notes at 57: “The waitress subculture, worldly and pragmatic, hardly reinforced romantic visions of escape into marital bliss. The kinds of stories repeated in the workplace by the older divorced and separated waitresses more often than not put the younger women on guard against members of the male sex who, by all appearances, rarely functioned satisfactorily in their roles as providers and companions.” For a historical overview of waitressing as an occupation, including a discussion of sexual harassment, see Cobble, Dishing It Out at 44–5. See, generally, sexual harassment cases reported in the Canadian Human Rights Reporter for documentation of the disproportionately high number of sexual harassment cases involving waitresses. MacKinnon, Sexual Harassment of Working Women at 19. Other aspects of a woman’s identity, such as her race, class, ethnic origin, sexual orientation, mental or physical disabilities, will also affect the dynamics of how she is sexualised in the workplace. See Duclos, “Disappearing Women.” Thornton, “Sexual Harassment Losing Sight” at para. 2.

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61 See Eli Zaretsky, Capitalism, the Family and Personal Life (New York: Harper and Row, 1976), Frances Olsen, “The Family and the Market: A Study of Ideology and Legal Reform,” (1983) 96 Harvard L. Rev., 1497. 62 See Rosemary Pringle, Secretaries Talk (New York: Verso, 1989) at 6–21 [Secretaries Talk]. 63 Ibid. at 12. 64 Brett Harvey, The Fifties: A Woman’s Oral History (New York: HarperCollins, 1993) at 143. 65 Ibid. at 142. 66 See Diaz v. Pan American World Airways, 442 F.2d. 385 (1971) (5th Cir.). 67 Ibid. at 44–5. 68 According to Cobble, Dishing It Out at 54: “Like most service workers, the relationship with the customer gave waitresses a measure of control over their work environment, no matter how intrusive a boss they had.” 69 See, for e.g., Doherty v. Lodgers Int’l Ltd. (N.B. 1982) 3 C.H.R.R. D/628 (Goss), Ballantyne v. Molly “N” Me Tavern (Ont. 1983) 4 C.H.R.R. D/1191 (McCamus). 70 Thorton, at para. 2. 71 Joan Acker, “Hierarchies, Jobs, Bodies: A Theory of Gendered Organizations,” (1990) 4 Gender and Society, 139 [“Hierarchies, Jobs, Bodies”]. 72 Pringle, Secretaries Talk at 84, critiquing the Weberian notion of bureaucracy as rational and asexual and adopting Foucault’s understanding of the pervasiveness of sexuality within bureaucratic institutions. 73 Acker, “Hierarchies, Jobs, Bodies” at 153, citing R.W. Connell, Gender and Power (Stanford: Stanford University Press, 1987). 74 Ibid. 75 Robin West, “The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory,” (2000) 3 Wisconsin Women’s Law Journal 81, at 108–16. See also, Pringle, Secretaries Talk at 94, where she suggests “[e]ven non-harassing sexual behaviour has negative consequences for women.” 76 West, “The Difference in Women’s Hedonic Lives,” maintains at 111, “’Falling-in-love’ with high school teachers, college professors, or research assistants really does destroy the productivity, the careers, the earning potential and eventually the self respect of many gifted

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women. Smart women drop out of high school, college and graduate school (and pretty women are at highest risk) to date, to marry, to help, and to serve those they perceive as intellectual giants. … But in spite of its incredible familiarity, most academic men and many academic women do not see this as a harm at all, and if they do see it as a harm, they do not see it as worth discussing.” See also, Pringle, Secretaries Talk at 94 citing B.A. Gutek and V. Dunwoody, “Understanding Sex in the Workplace,” in A.H.Stromberg et al., eds., Women and Work (An Annual Review, volume 2) (Newbury Park: Sage, 1987). See Margaret Mead, “A Proposal: We Need Taboos on Sex at Work,” (April 1978) Redbook 31, cited in Cohen and Backhouse, Secret Oppression at 205–6. Pringle, Secretaries Talk at 100. See also, Naomi Mezey, “Legal Radicals in Madonna’s Closet: The Influence of Identity Politics, Popular Culture and a New Generation on Critical Legal Studies,” (1994) 46 Stanford Law Review 1835, at 1854–7 (examining “strategies for recasting traditional sexual narratives in ways women can control and translate into power” (p. 1857)). For similar arguments, see Vicki Schultz, “The Sanitized Workplace,” (2002–2003) 112 Yale Law Journal 2061 at 2192. See Patricia Armstrong and Hugh Armstrong, A Working Majority: What Women Must Do for Pay (Ottawa: Canadian Advisory Council on the Status of Women, 1983) [A Working Majority]; Barbara Roberts “Trends in the Production and Enforcement of Female ‘Dependence’,” (1990) 4 Canadian Journal of Women and the Law, 217. Janzen, at 1284. Ibid. See Heather Menzies, “Re-Thinking the Social Contract: Women, Work, and Technology in the Post-Industrial Era,” (1990) 4 Canadian Journal of Women and the Law 205. She concludes at 209, “overall, however, the accumulating evidence clearly points to a shift for women toward a much narrower range of jobs requiring fewer skills, offering less scope for personal involvement and initiative, and, significantly, involving much closer definition and control by technical operating systems.” See Morley Gunderson, Leon Muszynski with Jennifer Keck, Women and Labour Market Poverty (Ottawa: Canadian Advisory Council on the Status of Women) at 115–26 [Women and Labour Market Poverty]; Elisabeth Hagen and Jane Jenson, “Paradoxes and Promises – Work and Politics in the Postwar Years,” in Jane Jenson, Elisabeth Hagen,

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and Ceallaaigh Reddy, eds., Feminization of the Labour Force: Paradoxes and Promises (Cambridge: Polity Press, 1988), 1–16. Hagen and Jenson, ibid. at 11. Gunderson et al., Women and Labour Market Poverty at 120 Acker, “Hierarchies, Jobs, Bodies” at 146. Rosabeth Moss Kanter, Men and Women of the Corporation (New York: Basic Books, 1977) at 73. Ibid. Acker, “Hierarchies, Jobs, Bodies” at 143, has questioned the dichotomy Moss Kanter presents between modern bureaucratic and premodern feudal-type working relations, with secretarial work relations falling into the latter category. Pringle, Secretaries Talk at 27, is careful to note: “While secretaries are at all sorts of structural disadvantages in relation to bosses they are not hapless victims: a variety of strategies of power and resistance are open to them.” See also, discussion in Hugh Collins, “Market Power, Bureaucratic Power and the Contract of Employment,” (1986) 15 Industrial Law Journal, 1 (emphasizing the need for unions to challenge arbitrary and abusive workplace hierarchies). See Armstrong and Armstrong, A Working Majority at 167–73, Elizabeth Evans, “Accounting for StitchCo: The Effects of Internal Control Techniques on the Lives of Working Women,” (1990), 4 Canadian Journal of Women and the Law 252, Sallie Westwook, All Day, Every Day: Factory and Family in the Making of Women’s Lives (London, England: Pluto Press, 1984). Armstrong and Armstrong, A Working Majority at 168.

chapter five 1 Patricia A. Monture, “Ka-Nin-Geh-Heh-Gah-E-Sa-Nonh-Yah-Gah,” (1986) 2 Canadian Journal of Women and the Law, 159 at 159 [“Ka-Nin-Geh”]. Monture translates this title as “the way the Flint Women do,” which she explains is “a way of strength in which the fire of our nation shall be kept kindled. This is the responsibility of the women of our nation.” (159) Monture is a member of the Hode-no-sau-nee (Iroquois) Confederacy. In her article, she explores racism and sexism through a personal account of a conference she attended on racism. 2 Sara Ruddick, “Maternal Thinking,” in Joyce Trebilcot, ed. Mothering: Essays in Feminist Theory (Totowa: Rowman and Allanheld, 1984) 213 at 217 [“Maternal Thinking”].

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3 Adrienne Rich, “Conditions of Work: The Common World of Women,” in Sara Ruddick and Pamela Daniels, eds. Working It Out (New York: Pantheon, 1977), xvi, cited in Ruddick, “Maternal Thinking.” 4 A decision not to act may be a conscious choice, motivated by caring i.e. understanding that the person cared for is capable of acting without assistance. See Nel Noddings, Caring (Berkeley: University of California Press, 1984) at 23–6 [Caring]. 5 Ruddick, “Maternal Thinking” at 217–20. 6 See Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard University Press, 1982) [In a Different Voice]; see also Jean Baker Miller, Towards a New Psychology of Women, 2d ed. (Boston: Beacon Press, 1986) [Towards a New Psychology of Women]; Carol Gilligan, Janie Victoria Ward, and Jill McLean Taylor (with Betty Bardige), eds. Mapping the Moral Domain: A Contribution of Women’s Thinking to Psychological Theory and Education (Cambridge, MA: Harvard University Press, 1988). See also, Mary Field Belenky, Blythe McVicker Clinchy, Nancy Rule Goldberger, and Jill Mattuck Tarule, Women’s Ways of Knowing: The Development of Self, Voice and Mind (New York: Basic Books, 1986) [Women’s Ways of Knowing]. 7 Gilligan, In a Different Voice at 31. 8 See Noddings, Caring; Joan Tronto, “Women and Caring: What Can Feminists Learn about Morality From Caring?” in Alison Jaggar and Susan Bordo, eds., Gender/Body/Knowledge/Feminist Reconstructions of Being and Knowing (New Brunswick and London: Rutgers University Press, 1989), 172–87 [“Women and Caring”], in which she makes a distinction between caring for people and caring about ideas; Joan Tronto, “Beyond Gender Difference to a Theory of Care,” (1987) 12 Signs (Summer), 644 [“Beyond Gender Difference to a Theory of Care”]; Sara Ruddick, Maternal Thinking: Towards a Politics of Peace (Boston: Beacon Press, 1989) [Towards a Politics of Peace]; Sheila Mullett, “Shifting Perspective: A New Approach to Ethics,” in Lorraine Code, Sheila Mullett, and Christine Overall, eds. Feminist Perspectives, Philosophical Essays on Method and Morals (Toronto: University of Toronto Press, 1988) 109 [“Shifting Perspective: A New Approach to Ethics”]; Jean Grimshaw, Philosophy and Feminist Thinking (Minneapolis, University of Minnesota Press, 1986), chs 7 and 8; Seyla Benhabib, “The Generalized and the Concrete Other: The KohlbergGilligan Controversy and Feminist Theory,” in Seyla Benhabib and Drucilla Cornell, eds. Feminism as Critique (Minneapolis: University

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of Minnesota Press, 1987), 77 [“The Generalized and the Concrete Other”]. Carol Baines, Patricia Evans, and Sheila Neysmith, eds. Women’s Caring: Feminist Perspectives on Social Welfare (Toronto: McClelland and Stewart, 1991). See also, Kathy E. Ferguson, The Feminist Case Against Bureaucracy (Philadephia: Temple University Press, 1984) [Feminist Case against Bureaucracy]. See, for example, Carrie Menkel-Meadow, “Portia in a Different Voice: Speculations on a Women’s Lawyering Process,” (1985) 1 Berkeley Women’s Law Journal, 39, Leslie Bender, “From Gender Difference to Feminist Solidarity: Using Carol Gilligan and an Ethic of Care in Law” (1990), 15 Vermont Law Review 1, Judith Areen, “A Need for Caring – Book Review of AIDS and the Law: A Guide for the Public (1987),” (1988) 86 Michigan Law Review, 1067 [“A Need for Caring”]; Robin West, Caring for Justice (New York: New York University Press, 1997) [Caring for Justice]. See, for example, Catharine MacKinnon, “Difference and Dominance: On Sex Discrimination,” in Feminism Unmodified (Cambridge, MA: 1987), 32–45; Linda Kerber, Catherine Greeno, Eleanor Maccoby, Zella Luria, Carol Stack, and Carol Gilligan, “On In a Different Voice: An Interdisciplinary Forum,” (1986) 11 Signs, 304. See “A Different Reality: Feminist Ontology,” in Joyce Trebilcot, ed., Mothering: Essays in Feminist Theory (Totowa: Rowman and Allanheld, 1984), 64 at 65. See Susan Moller Okin, ”Reason and Feeling in Thinking About Justice,” in Cass R. Sunstein, ed., Feminism and Political Theory (Chicago: University of Chicago Press, 1990), 15 [“Reason and Feeling”]. See Tronto, “Beyond Gender Difference to a Theory of Care.” See, for example, discussion in Robin West, “Gender and Jurisprudence,” (1988) 55 University of Chicago Law Review 1 at 4–12. See also, Robin West, “The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory,” (2000) 15 Wisconsin Women’s Law Journal ,149 [“Hedonic Lives”]; Jane J. Mansbridge, ed. Beyond Self-Interest (Chicago: University of Chicago Press, 1990). Noddings, Caring at 99–100. Ibid. at 49. Noddings has been criticized for endorsing a skewed distribution of caring that entrenches women’s roles as caregiver without placing due emphasis on the importance of encouraging

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and demanding others to take care of women; see Mullett, “Shifting Perspective: A New Approach to Ethics.” Gilligan, In a Different Voice at 63. Ibid. at 166. Gilligan appears to use a fairly liberal definition of equality rights, which differs from my approach to equality; nevertheless, the idea in this passage conveys a rejection of caring as self-denial. See also Gilligan’s discussion of the concept of “responsibility” in “Feminist Discourse, Moral Values, and the Law: A Conversation,” (1985) 34 Buffalo L.R. 11 at 44–5 and Hester Lessard, “Relationship, Particularity and Change: Reflections on R. v. Morgentaler and Feminist Approaches to Liberty,” (1991) 36 McGill Law Journal 263 at 276–8. Gilligan, In a Different Voice at 132. For Ruddick: “Intellectual activities are distinguishable but not separable from disciplines of feeling. There is a unity of reflection, judgment and emotion. This unity I call ‘maternal thinking’.” (“Maternal Thinking” at 214). Ibid. See also Jean Baker Miller, Towards a New Psychology of Women; West, “Hedonic Lives.” Adrienne Rich has critiqued the institution of mothering in patriarchal society; however, she still has hope for the positive aspects of mothering: see Of Woman Born: Motherhood as Experience and Institution (New York: W.W. Norton and Co., 1976). Ruddick, “Maternal Thinking” at 226. Although Ruddick has also been criticized for advancing an essentialist definition of women that focuses on women and mothering, it is important to note that Ruddick specifically cautions: “In articulating and respecting the maternal, I do not underwrite the still current, false, and pernicious identification of womanhood with biological or adoptive mothering of particular children in families. For me, “maternal” is a social category. Although maternal thinking arises out of actual child caring practices, biological parenting is neither necessary nor sufficient.” (at 225) This differs from the way in which Noddings uses the term “reciprocity” to convey the idea of responsiveness; see Noddings, Caring at 69–74. Jennifer Nedelsky, “Reconceiving Autonomy: Sources, Thoughts and Possibilities,” (1989) 1 Yale Journal of Law and Feminism 7, at 11 [“Reconceiving Autonomy”]. For Nedelsky, “To become autonomous is to come to be able to find and live in accordance with one’s own law” (at 7). Ibid.

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28 Areen, “A Need for Caring” at 1075. 29 Tronto, “Women and Caring” at 176. The expression or communication of needs does not always take the form of rational discourse. Facial expressions, physical acts, crying etc. exemplify other ways of communicating needs. 30 Lynne N. Henderson, “Legality and Empathy,” (1987) 85 Michigan Law Review 1574 at 1579 [“Legality and Empathy”]. This is referred to as “connected knowing” in Mary Field Belenky et al., Women’s Ways of Knowing, at 113. As clarified below, obtaining empathic knowledge is not an abstract, philosophical process; it is based on communication. 31 Henderson, ibid. at 1577. 32 Henderson, ibid. at 1585 writes: In a different way, I cannot empathize totally with the pain of blacks in racist societies, because I am white, and my whiteness both protects me and has influenced me at levels to which I do not have ready access. Yet does that excuse me from reading black literature, hearing black pain and joy, listening to the experience of blacks as blacks? Does that mean I should not attempt an empathic understanding because it cannot be total? Or will my increased understanding allow me to be a more responsible moral agent, a more effective lawyer/law professor, a better legal decision-maker? To the extent I understand what it is I face, I understand my moral options. I simply cannot pretend absolute certainty. 33 Tronto, “Women and Caring” at 177. 34 See, for example, Ronald Dworkin, Taking Rights Seriously (Cambridge, ma: Harvard University Press, 1982) at 272–3 [Taking Rights Seriously]. 35 John Rawls, A Theory of Justice (Cambridge, ma: Harvard University Press, 1971). 36 Dworkin, Taking Rights Seriously at 181. See Mari Matsuda “Liberal Jurisprudence and Abstracted Visions of Human Nature: A Feminist Critique of Rawls’ Theory of Justice,” (1986) 16 New Mexico Law Review, 613. Susan Moller Okin, however, argues that Rawls “original position” is not as de-contextualized and antithetical to caring and empathy as it is often presented: see “Reason and Feeling” at 5–35. 37 Benhabib, “The Generalized and the Concrete Other” at 87. 38 Ibid. at 87. 39 Ibid. at 93. Benhabib does not advocate limiting normative validity to one or the other standpoint but examining this “unexaminined

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opposition” as a mechanism for understanding the “ideological limitations and biases of universalist morality” (at 92). Mari Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations,” (1987) 22 Harvard Civil Rights-Civil Liberties Law Review 323 at 324. Nitya Duclos (Iyer), “Lessons of Difference: Feminist Theory on Cultural Diversity,” (1990) 38 Buffalo L.R. 325 at 380 [“Lessons of Difference”]. Noddings, Caring at 5. See discussion of cases in Henderson “Legality and Empathy.” The legal realist critique of legal formalism also brought to light the underlying value judgments implicit in legal decision-making; see Elizabeth Mensch, “The History of Mainstream Legal Thought,” in David Kairys, ed. The Politics of Law: A Progressive Critique (New York: Pantheon Books, 1982) 18–39 and Edward Purcell, The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington: University Press of Kentucky, 1973). Baker Miller, Towards a New Psychology of Women at 55–7 [emphasis in original]. Monture, “Ka-Nin-Geh,” at 162. See also Duclos, “Lessons of Difference” at 354–9, rejecting the possibility and desirability of universal theorizing. Noddings, Caring at 12. Baker Miller, Toward a New Psychology of Women at 3. Ibid. at 4. Some have viewed the process of becoming an adult as “a progressive impoverishment of the capacity to perceive the world, as one learns to deaden and distort experience by translating it into the conventional patterns of the culture.” (See Arlene Skolnick, “The Limits of Childhood: Conceptions of Child Development and Social Context,” (1975) 39 Law and Contemp. Probs. 38 at 55 (citing Ernest G. Schachtel, Metamorphosis (New York: Basic Books,1959)). Skolnick discusses the biases in developmental models of child development. See also Clark v. Clark (1982), 40 O.R. 383 at 386 (Ont. Co. Ct.). Baker Miller, Toward a New Psychology of Women. Ibid. at 6. Ideologies of racism and sexism are integral dimensions of the lived realities of inequality: see Monture, “Ka-Nin-Geh.” On the relationship between law, inequality, and violence, see Martha Minow, “Interpreting Rights: An Essay for Robert Cover,” (1987) 96 Yale Law Journal, 1860. For a more extended discussion of permanent inequality, see discussion in Baker Miller, Toward a New Psychology of Women at 6–12.

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53 This clarification of the different uses of power is discussed by Gilligan, In a Different Voice, at 168. See also, Marilyn French, Beyond Power: On Women, Men and Morals (New York: Summit Books, 1985) at 504–12. 54 Audre Lorde, “Man Child: A Black Lesbian Feminist’s Response,” in Sister Outsider: Essays and Speeches (Trumansburg: Crossing Press, 1984), 72 at 76–7.) 55 For a discussion of the dimensions and contradictions of liberal feminism, see Alison Jaggar, Feminist Politics and Human Nature (Totowa, N.J.: Rowman and Allanheld, 1983). See also bell hooks, “Changing Perspectives on Power,” in Feminist Theory: From Margin to Center (Boston: South End Press, 1984) at 83. 56 As discussed above, “caring” should be viewed as distinct from “servicing” the needs of a dominant group or individual under conditions of permanent subordination. 57 Ruddick’s work on “maternal thinking” also attempts to acknowledge the public relevance of the logic and skills of mothering: see “Maternal Thinking.” See also Ruddick, Towards a Politics of Peace, Virginia Held, “Mothering versus Contract,” in Jane J. Mansbridge, ed. Beyond Self-Interest (Chicago: University of Chicago Press, 1990), 287. 58 Baker Miller, Toward a New Psychology of Women at 5. 59 Though age discrimination is protected in human rights codes and constitutional documents, its analysis is somewhat different than other types of discrimination. Children often experience multiple, overlapping and intersectional discrimination; the elderly are subjected to multiple and overlapping inequalities, and negative stereotypes in many cultural contexts, though highly revered in some. For an analysis of equality for children, see Colleen Sheppard, “Children’s Rights to Equality: Protection versus Paternalism” (1992) 1 Annals of Health Law, 197. 60 See Gwyneth Ferguson Matthews, Voices from the Shadows (Toronto: Women’s Press, 1983) at 126–40; Martha Minow, “Learning to Live with the Dilemma of Difference: Bilingual and Special Education,” (1985) 48 Law and Contemporary Problems, 157. See also, Catherine Frazee, “Toward Robust Citizenship” (paper presented to the End Exclusion Forum, Celebrating the 25th Anniversary of obstacles, Report of the Special Parliamentary Committee on the Disabled and the Handicapped, 2 November 2006). 61 Monture, “Ka-Nin-Geh” at 159. 62 A search in LexisNexis Quicklaw’s database of Human Rights Law Tribunal Decisions reveals very few relevant results for the keyword

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“caring.” The irrelevance of caring has even been suggested: in Morris v. British Columbia Railway Co., [2003] B.C.H.R.T.D. No. 14, a workplace discrimination claim, the British Columbia Human Rights Tribunal says very explicitly that, “the [Human Rights] Code does not contain any requirement that managers be kind, caring or empathetic” (at para. 56). 63 For the classic statement on the duty of care in tort law, see Donoghue v. Stevenson, [1932] A.C. 562 at 580 per Lord Atkins: “there must be, and is, some general conception of relations giving rise to a duty of care… The rule that you are to love your neighbour becomes in law you must not injure your neighbour.” For a critique of the limitations of traditional tort duties, see Leslie Bender, “A Lawyer’s Primer on Feminist Theory and Tort,” (1988) Journal of Legal Education 3. It is noteworthy that the Quebec Charter of Human Rights and Freedoms R.S.Q. 1977 C-12, contains affirmative duty to rescue. Section 2 provides: “Every human being whose life is in peril has a right to assistance. Every person must come to the aid of anyone whose life is in peril, either personally or calling for aid, by giving him necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason.” On fiduciary relationships, see Norberg v. Wynrib, [1992] 2 S.C.R. 226 (concerning the doctor-patient relationship), R. v. Sparrow [1990] 1 S.C.R. 1075 and Guerin v. R. [1984] 2 S.C.R. 335 (finding a fiduciary relationship between the federal government and Aboriginal peoples); see also Frame v. Smith, [1987] 2 S.C.R. 99 per Wilson J. dissenting (applying fiduciary principles to the parent-child relationship). 64 See discussion of the hidden relational dimensions of property rights in Jennifer Nedelsky, “Law, Boundaries, and the Bounded Self,” (Spring, 1990) 30 Representations, 162. 65 See, for example, Carol Smart, The Ties that Bind (London: Routledge and Kegan Paul, 1984); Michael D.A. Freeman, State, Law, and the Family: Critical Perspectives (London: Tavistock Publications, 1984); M. Barret and M. McIntosh, The Anti-Social Family (London: Verso Books, 1982); Jean B. Elshtain, Public Man, Private Woman (Princeton: Princeton University Press, 1981); E. Zaretsky, Capitalism, the Family and Personal Life (New York: Harper and Row, 1976); Katherine O’Donovan, Sexual Divisions in Law (London: Weidenfeld and Nicolson, 1985); Susan Moller Okin, Justice, Gender, and the Family (New York: Basic Books, 1989); Martha Minow, “Forming Underneath Everything that Grows: History and Family Law,” in

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Margaret Eichler, ed. Families in Canada Today (2d ed.) (Toronto: Gage Press, 1988). Marlee Kline has noted “[a]lthough both women of color and white women sometimes experience the family as an institution of violence and oppression, for women of color the family often functions as a source of support for its members against the immediate harassment of racism and provides a site of cultural and political resistance to white supremacy” in “Race, Racism and Feminist Legal Theory” (1989), 12 Harvard Women’s Law Journal, 115 at 122–123. See also Osennontion and Skonaganleh:ra, “Our World,” (1989) 10 Canadian Women’s Studies, 7 at 12, for a discussion of family relations in the Mohawk culture; Susan Boyd, “Some Postmodernist Challenges to Feminist Analyses of Law, Family and State: Ideology and Discourse in Child Custody Law,” (1991) 10 Canadian Journal of Family Law, 79. See C.B. Macpherson, Democratic Theory: Essays in Retrieval (Oxford: Clarendon Press, 1973); C.B. Macpherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Oxford University Press, 1977); Roscoe Pound, “Liberty of Contract,” (1908–09) 18 Yale Law Journal, 454; Robert Hale, “Coercion and Distribution in a Supposedly Non-Coercive State,” (1923) 38 Political Science Quarterly, 470; Morris Cohen, “The Basis of Contract,” (1933) 46 Harvard Law Review, 533. See C.B. Macpherson, Democratic Theory at 143 and 146. Tronto, “Women and Caring” at 178–179 (citations omitted). See also Nancy Hartsock, Money, Sex and Power (New York: Longman, 1983) [Money, Sex and Power]. Though not referring directly to the concept of caring, see also C.B. Macpherson, Democratic Theory, on obstacles to the development of human capacities within market society. Frances Olsen’s work on the market and the family clarifies the importance of understanding the connections between various social institutions. See Frances Olsen, “The Family and the Market: A Study of Ideology and Legal Reform,” (1983) 98 Harvard Law Review, 1497. For a discussion of problems of domination in market relations, see Hartsock, Money, Sex and Power. For an in-depth critique of bureaucracy, see Ferguson, Feminist Case Against Bureaucracy. See also Nedelsky “Reconceiving Autonomy” (on human relations and the importance of developing a reconceptualized notion of autonomy in the bureaucratic context); Jerry Frug, “Administrative Democracy,” (1990) 40 University of Toronto Law

Notes to pages 116–20

73 74

75 76

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Journal, 559; Hugh Collins, “Market Power, Bureaucratic Power, and the Contract of Employment,” (1986) 15 Industrial Law Journal, 1. An analysis of bureaucratic relations is particularly important to consideration of constitutional protections of equality given the tendency towards bureaucratic forms of organization within publicly funded institutions. See Benhabib, “The Generalized and the Concrete Other.” For a discussion of mentoring and alternative conceptions of mentoring in the university context, see Roberta Hall and Bernice Sandler, “Academic Mentoring for Women Students and Faculty: A New Look at an Old Way to Get Ahead,” Project on the Status and Education of Women (Washington, D.C.: Association of American Colleges, 1983). See also Adelle Blackett, “Mentoring the Other: Cultural Pluralist Approaches to Access to Justice,” (2001) 8 International Journal of the Legal Profession, 275. Ferguson, Feminist Case Against Bureaucracy at 19–20. Monture, “Ka-Nin-Geh.”

chapter six 1 C.B.Macpherson, The Life and Times of Liberal Democracy (Oxford: Oxford University Press, 1977) at 94. 2 I share an expansive definition of civil society, which extends to corporations, workplaces, and educational institutions, as well as the array of voluntary community associations and religious organizations. For an extended discussion of the debate on whether the workplace is part of civil society, see Cynthia L. Estlund, “Working Together: The Workplace, Civil Society and the Law,” (2000) 89 Georgetown Law Journal, 1 (arguing that the workplace should be treated as an institution of civil society). 3 See Jennifer Nedelsky’s discussion of “equal moral worth” in “Embodied Diversity and the Challenges to Law,” (1997) 42 McGill L. J. 91 at 114–16. 4 The continuing importance of private property as one of the most significant sources of sovereignty is in tension with an extension of democracy outside the formal political realm. See Susan Okin Moller, Justice, Gender, and the Family (New York: Basic Books, 1989), on bringing justice based ideals into the family domain.

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5 Dianne Lamoureux has clarified that the key distinguishing feature of modern citizenship is its basis in representative, rather than direct, democratic participation: “En fait, l’élément central qui distingue la citoyenneté moderne de la citoyenneté antique, c’est qu’elle repose sur le principe de l’autorisation populaire du pouvoir politique (la représentation) plutot que sur l’idée d’une participation directe à l’exercise du pouvoir.” See Diane Lamoureux, L’amère patrie : féminisme et nationalisme dans le Québec contemporain (Québec: Éditions RemueMénage, 2001), at 46 [L’amère patrie]. 6 Carole Pateman, Participation and Democratic Theory (Cambridge: Cambridge University Press, 1970), at 35 [Participation and Democratic Theory]. It is important to keep in mind, however, the distinction between participation and democracy. While the former can occur even within traditional authoritarian decision-making structures, the latter requires a sharing of decision-making power. Some of the policy initiatives categorized as industrial democracy involve only greater consultation and participation rather than any actual change in the structure of control. Representation of formerly excluded groups itself can be problematic if it merely legitimates the status quo while not devolving any effective decision-making power to those traditionally excluded. Rianne Mahon has labelled this phenomenon the “unequal structure of representation,” whereby the interests of the dominant groups are never threatened by the input of historically disadvantaged groups because the latter are only accorded marginal or token representation on decision-making bodies (Rianne Mahon, “The Unequal Structure of Representation,” in Leo Panitch, ed. The Canadian State: Political Economy and Political Power [Toronto: University of Toronto Press, 1977]). 7 Amy Gutman and Dennis Thompson, Democracy and Disagreement (Cambridge: Harvard University Press, 1996) at 359, cited by Daniel Weinstock, “Saving Democracy from Deliberation,” in Ronald Beiner and Wayne Norman, eds., Canadian Political Philosophy (Don Mills: Oxford University Press, 2001) [“Saving Democracy from Deliberation”]. 8 See Iris Marion Young, Inclusion and Democracy (Oxford: Oxford Univ. Press: 2000) [Inclusion and Democracy]. See also, Young, “Communication and the Other: Beyond Deliberative Democracy,” in S. Benhabib, ed., Democracy and Difference – Contesting the Boundaries of the Political (Princeton: Princeton University Press, 1996) 120–35 at 120. See also Jane Mansbridge, Beyond Adversary

Notes to pages 120–2

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10

11 12

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Democracy (New York: Basic Books, 1980); Benjamin Barber, Strong Democracy: Participatory Politics for a New Age (Berkeley: University of California Press, 2003) [Strong Democracy]. Weinstock, “Saving Democracy from Deliberation.” “Politics” is conceived of as “the reflective form of substantial ethical life, namely as the medium in which the members of somehow solitary communities become aware of their dependence on one another and, acting with full deliberation as citizens, further shape and develop existing relations of reciprocal recognition into an association of free and equal consociates under law.” See Jurgen Habermas, “Three Normative Models of Democracy,” in Benhabib, Democracy and Difference, 21 at 21. Young, Democracy and Inclusion, at 121, 126–7. Young acknowledges this possibility and critiques the way in which deliberative or classical republican democracy tends to treat homogeneity as a positive attribute for the functioning of democracy (the town meeting context) and the objective of democratic deliberation is often understood in terms of the transcendence of different private interests in the name of some unitary common good. Such a vision is obviously in tension with social diversity in modern society and with a concern that differences be celebrated, not ignored nor overcome. Thus Young highlights three conditions for effective democracy that are not dependent on “shared understandings or the goals of finding common goods.” These include simply: “significant interdependence, formally equal respect, and agreed-upon procedures.” Pateman, Participation and Democratic Theory; Young, ibid.; Barber, Strong Democracy. In Joshua Cohen’s article, “Deliberation and Democratic Legitimacy,” in James Bohman and William Rehg, eds., Deliberative Democracy, Essays on Reason and Politics (Cambridge and London: mit Press, 1997), he highlights the importance of equal citizenship, writing at 72 that “the notion of a deliberative democracy is rooted in the intuitive ideal of a democratic association in which the justification of the terms and conditions of association proceeds through public argument and reasoning among equal citizens.” In Pateman’s early work on what she called “participatory democracy,” she traced its roots to Rousseau. In Participation and Democratic Theory, Pateman writes at 22: “Rousseau might be called the theorist par excellence of participation … Rousseau’s entire political theory hinges on the individual participation of each

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Notes to pages 123–5

citizen in political decision-making.” Relying on Rousseau is somewhat problematic and presents some intractable contradictions given his endorsement of a exclusionary definition of citizen, see Lamoureux, L’amère patrie, at 43. Pateman has also more recently questioned her earlier work: see The Sexual Contract (Stanford: Stanford University Press, 1988). Young, Inclusion and Democracy, at 122. Ibid. at 123. Ibid. at 122–3. See Iris Marion Young, “Polity and Group Difference: A Critique of the Ideal of Universal Citizenship,” in Cass Sunstein, ed., Feminism and Political Theory (Chicago: University of Chicago Press, 1990). Gutman and Thompson, Democracy and Disagreement at 64. Ibid. at 24. Ibid. at 12. In her article, “Equality, Difference, Public Representation,” in Benhabib, Democracy and Difference (171–86), Gould writes at 181: “This includes participation in decision-making in the institutions of work, that is in the firm, in social and cultural institutions, as well as in contexts of politics and government. This would also include the voluntary associations, social movements, and informal groupings of the public sphere.” Gould, ibid, at 181. Ibid. at 148. Young, Inclusion and Democracy at 128. Young clarifies what she means by an oppressed group by enumerating a number of conditions characteristic of oppression, including exploitation (“the benefits of their work or energy go to others”), exclusion from participation in major social activities, powerlessness (living under the authority of others), subjection to group stereotypes, and random violence and harassment. See also, Young, “Five Faces of Oppression” (1988) 19 Philosophical Forum, 270. See also, Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990) at c.2 [Politics of Difference]. Young, Politics of Difference at 128–30. In this regard, Young distinguishes group representation from interest group politics, since the former is premised on a contextual and historical analysis of group-based exclusion and oppression. Young, ibid. at 130. Young also enumerates three institutional mechanisms for group representation, including self-organization of the

Notes to pages 125–8

27 28 29

30 31 32 33 34 35 36 37 38 39 40 41

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group, the voicing of the group’s analysis on various policy issues, and being accorded a veto power regarding issues of particular concern to the group (ibid. at 128–9). I find the idea of according a veto on issues directly affecting particular groups potentially problematic to the extent that it may marginalize certain issues as group issues rather than understanding the connections between all of the various institutional decisions and the interests of socially disadvantaged groups. Anne Phillips, Engendering Democracy (University Park: Penn State University Press, 1991). See also, chapter 1. Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84 at para. 16. Anthony Giddens, in The Third Way: The Renewal of Social Democracy (Cambridge: Polity Press, 1998), applies democratic theory to the family, writing at 93: “Democratization in the context of the family implies equality, mutual respect, autonomy, decision-making through communication and freedom from violence.” Law v. Canada, [1999] 1 S.C.R. 497 at para. 53. Ibid. Ibid. at para. 72. Reference re Secession of Quebec, [1998] 2 S.C.R. 217 [Secession Reference]. Ibid. at para. 61. Ibid. at para. 140. Ibid. at para.. 64. [1986] 1 S.C.R. 103. Ibid. at 136. Secession Reference, at para. 66. [1998] 1 S.C.R. 493. Ibid. at para. 140. Though raising considerable controversy, the Court concluded that the express exclusion of sexual orientation from the enumerated grounds of discrimination in provincial human rights legislation violated the Canadian Charter. The Supreme Court, therefore, relying on s. 15 equality rights, extended statutory human rights protection to gays and lesbians against the wishes of the legislative majority in Alberta. R. v. Mills, [1999] 3 S.C.R. 688 at para. 58. Ibid, at paras. 74–8. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980). See Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, per McIntyre J. : “Non-citizens, lawfully permanent residents of Canada, are – in the

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51 52 53 54 55 56 57 58 59 60 61 62 63 64 65

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Notes to pages 128–32

words of the U.S. Supreme Court in United States v. Carolene Products Co., 304 U.S. 144 (1938), at pp. 152–3, n. 4, subsequently affirmed in Graham v. Richardson, 403 U.S. 365 (1971), at p. 372 – a good example of a ‘discrete and insular minority’ who come within the protection of s. 15.” Andrews, ibid. at para. 5. Ibid. at para. 5, quoting from J.S. Mill’s Book III on Representative Government. [1999] 2 S.C.R. 203. Ibid. at para. 17. Ibid. at para. 80. Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519. Section 3 provides: “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” Ibid. at para. 15. Ibid. at para. 35.   Secession Reference, at para. 64. See the full text of section 23 of the Canadian Charter, which sets out the complex limits of this constitutional entitlement. Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3 at para. 31 [Arsenault-Cameron]. [1990] 1 S.C.R. 342 [Mahe]. Ibid. at para. 52. Ibid. at para. 51. Arsenault-Cameron Ibid. at para. 46 citing Mahe at para. 57. Ibid. at para. 54. Ibid. at para. 57. Arsenault-Cameron at para 45. See Patrick Macklem, Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001), at 5. See, for example, R. v. Sparrow, [1990] 1 S.C.R. 1075; R. v. Van der Peet, [1996] 2 S.C.R. 507 Mitchell v. M.N.R., [2001] 1 S.C.R. 911; R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672. For a critique of the Supreme Court jurisprudence, see John Borrows, “The Trickster: Integral to a Distinctive Culture” (1997) 8 Constitutional Forum 29. See also, Jean Leclair, “Federal Constitutionalism and Aboriginal Difference” (2006) 31 Queen’s Law Journal 521.

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67 See Canada, People to People, Nation to Nation (Ottawa: Royal Commission on Aboriginal Peoples Report (rcap), 1996). See also Highlights from the Report. Online at: http://www.ainc-inac.gc.ca/ap/ rrc-eng.asp (accessed 27 January 2010). 68 rcap, ibid., Volume 1, ch. 16, “The Principles of a Renewed Relationship.” 69 Ibid. at Part 1.1. 70 See RCAP, Vol. 2, ch. 4, “Lands and Resources.” See also Dale Turner, “Vision: Towards an Understanding of Aboriginal Sovereignty,” in Ronald Beiner and Wayne Norman, eds., Canadian Political Philosophy (Don Mills: Oxford University Press, 2001); James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995). 71 See Val Napoleon, Thinking about Indigenous Legal Orders Research Paper for the Centre for First Nations’ Governance, June 18, 2007. At the international level, it is also significant that the UN Declaration on the Rights of Indigenous Peoples affirms the right to self-determination, including the “right to autonomy or self-government in matters relating to their internal and local affairs.” The Declaration also endorses the right of Indigenous peoples “to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.” See Declaration on the Rights of Indigenous Peoples, Adopted by General Assembly Resolution 61/295 on 13 September 2007, see articles 4 and 5. 72 [1999] 2 S.C.R. 3 [Meiorin]. 73 Ibid. at para. 68. 74 Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114 at 43 [Action Travail des Femmes]. 75 Employment Equity Act, S.C. 1995, c. 44, s.15. 76 See, for example, Syndicat de la function publique du Québec inc. c. Procureur general du Québec and Commission de l’équité salariale et. Conseil du trésor, (2004) C.S. at para. 1428 (Québec Superior Court), striking down parts of the Quebec pay equity legislation for its failure to include adequate participation of workers in the processes for remedying pay inequities. 77 See, for example, Canadian Labour Code, R.S., 1985, c. L-2; Freedom of Association and Protection of the Right to Organize Convention (ilo No. 87), 9 July 1948, 68 U.N.T.S. 17 (entered into force July 4, 1950); Right to Organize and Collective Bargaining Convention (ilo

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No. 98), 1 July 1949, 96 U.N.T.S. 257 (entered into force 18 July 1951). See also Adelle Blackett and Colleen Sheppard, “Collective Bargaining and Equality: Making Connections,” (2003) 142 International Labour Review 419.

chapter seven 1 Catherine Frazee, “Toward Robust Citizenship,” (paper presented to the End Exclusion Forum, Celebrating the 25th Anniversary of obstacles, Report of the Special Parliamentary Committee on the Disabled and the Handicapped, 2 November 2006) [“Toward Robust Citizenship”]. 2 On the concept of “partial agency,” see Kathyrn Abrams, “Sex Wars Redux: Agency and Coercion in Feminist Legal Theory,” (1995) Columbia Law Review 304 [“Sex Wars Redux”]. See also Elizabeth Schneider, “Particularity and Generality: Challenges of Feminist Theory and Practice in Work on Woman-Abuse,” (1992) 67 New York University Law Review, 520. 3 Abrams, “Sex Wars Redux. 4 See R. v. Lavallee, [1990] 1 S.C.R. 852. See also, discussion in Martha Shaffer, “The Battered Woman Syndrome Revisited: Some Complicating Thoughts Five Years after R. v. Lavallee,” (1997) 47 University of Toronto Law Journal, 1. 5 John Andersen and Birte Siim, “Introduction: The Politics of Inclusion and Empowerment: Gender, Class and Citizenship,” in Andersen and Siim eds., The Politics of Inclusion and Empowerment: Gender, Class and Citizenship (New York: Palgrave, 2004) at 2. 6 Stephen Golub, “Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative,” Carnegie Endowment for International Peace Working Papers, No. 41, October 2003 at 5. 7 Ibid. at 7. 8 Ibid. at 4. 9 Ruth Lister, Citizenship – Feminist Perspectives, 2d (New York: New York University Press, 1998) at 120. 10 Ruth Lister, “Inclusive Citizenship: Realizing the Potential,” (2007) 11 Citizenship Studies 49 at 55. 11 Ibid. at 56. 12 Martha Minow, “Surviving Victim Talk,” (1992–93) 40 UCLA Law Review 1411 at 1421, citing Kristin Bumiller, The Civil Rights Society:

Notes to pages 139–142

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14

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The Social Construction of Victims (Baltimore: Johns Hopkins University Press, 1988) at 2–4. See Colleen Sheppard, “The Promise and Practice of Protecting Human Rights: Reflections on the Quebec Charter of Human Rights and Freedoms,” in N. Kasirer and R. MacDonald eds., Mélanges Paul-André Crépeau, (Cowansville: Éditions Yvon Blais: 1997), 641– 78 at 661-3. See Iris Marion Young, “Polity and Group Difference: A Critique of the Ideal of Universal Citizenship,” in Cass Sunstein, ed., Feminism and Political Theory (Chicago: University of Chicago Press, 1990), first published 1989, 99 Ethics, 250. Naila Kabeer, “Introduction – The Search for Inclusive Citizenship: Meanings and Expressions in an Interconnected World,” in Naila Kabeer, ed. Inclusive Citizenship– Meanings and Expressions (London and New York: Zed Books, 2005), 1–27 at 23. Ibid. See Roberto M. Unger, Law in Modern Society (London; New York: The Free Press, 1976) at 206. Catherine Frazee, “Toward Robust Citizenship.” Angela P. Harris, “Race and Essentialism in Feminist Legal Theory,” (1990) 42 Stanford Law Review, 581. See also, Patricia A. Monture, “The Violence We Women Do: A First Nations View,” in Constance Backhouse and David H. Flaherty, eds. Challenging Times: The Women’s Movement in Canada and the United States (Montreal and Kingston: McGill-Queen’s University Press, 1992), 193–200 at 198. Harris at 612. Jürgen Habermas, “Struggles for Recognition in the Democratic Constitutional State,” in A. Gutmann, ed., Multiculturalism: Examining the Politics of Recognition (Princeton: Princeton University Press, 1994), 107 at 131–2. Iris Marion Young, “The Ideal of Community and the Politics of Difference,” in Linda J. Nicholson, ed., Feminism/Postmodernism (New York: Routledge, 1990), 300–23 at 317 and 320. See Brenda Cossman and Judy Fudge eds., Privatization, Law and the Challenge to Feminism (Toronto: University of Toronto Press, 2002); Hester Lessard, “The Empire of the Lone Mother: Parental Rights, Child Welfare law and State Restructuring,” (2002) 39 Osgoode Hall Law Journal, 717 at 745; Hester Lessard, “Mothers, Fathers, and Naming: Reflections on the Law Equality Framework and Trociuk v.

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British Columbia (Attorney General),” (2004) 16 Canadian Journal of Women and the Law, 165. Brian Howe and David Johnson, Restraining Equality: Human Rights Commissions in Canada (Toronto: University of Toronto Press, 2000) at 95. See the Job Quotas Repeal Act, 1995, S.O. c. 4. See, for example, F.L. Morton and R. Knopff, The Charter Revolution and the Court Party (Peterborough, on: Broadview Press, 2000). See Carol Agocs, “Canada’s Employment Equity Legislation and Policy, 1986–2000: Unfulfilled Promises,” in Carol Agocs, ed., Workplace Equality: International Perspectives on Legislation, Policy, and Practice (The Hague; New York: Kluwer Law International, 2002). See, for example, Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (Ottawa: Department of Justice, 2000) (Chair: G. La Forest)[Promoting Equality Report]; Ontario Human Rights Commission, Strengthening Ontario’s Human Rights System: What We Heard, Consultation Report (6 October 2005); Ontario Human Rights Code Review Task Force, Achieving Equality: A Report on Human Rights Reform (Toronto: Queen’s Printer, 1992) (Chair: Mary Cornish); William Black, Special Advisor, Report on Human Rights in British Columbia (Vancouver: Multiculturalism B.C., 1994) and Saskatchewan Human Rights Commission, Renewing the Vision: Human Rights in Saskatchewan (Saskatoon: Saskatchewan Human Rights Commission, 1996). Blencoe v. British Columbia (Human Rights Commission) [2000] 2 S.C.R. 307. See also Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884. On 31 March 2003, the provincial government of British Columbia abolished its human rights commission. It now provides direct access to the B.C. human rights tribunal for complainants. See An Act to Amend the Human Rights Code, 2006 S.O. c. 30. Promoting Equality Report. Available at the Canadian Human Rights Commission website at http://www.chrc-ccdp.ca. The shifting orientation of the Canadian Human Rights Commission has been controversial, particularly its decision not to fund lawyers for some individual complainants. It is interesting to observe the parallels with the US Equal Employment Opportunities Commission, which has shifted between a full individual representation model and a strategic systemic discrimination intervention model. See http://www.eeoc.gov.

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35 See Béliveau St-Jacques v. Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345, Guylaine Vallée et al., Le droit à l’égalité: les tribunaux d’arbitrage et le Tribunal des droits de la personne (Montréal: Éditions Thémis, 2001). 36 See articles in Tribunal des droits de la personne and le Barreau du Québec Conference Proceedings in La Charte des droits et libertés de la personne: pour qui et jusqu’où? (Cowansville: Éditions Yvon Blais, 2005). 37 The principles for such an institution would be guided by international standards: see National institutions for the promotion and protection of human rights, General Assembly resolution 48/134 of 20 December 1993 (Paris Principles). The Canadian Human Rights Commission fulfills this function to a limited extent. Its work, however, only touches upon matters of federal jurisdiction. 38 For an overview of the Court Challenges Program, see http://www. ccppcj.ca.

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Index

Abella, Judge Rosalie Silberman, 25, 28, 29, 75, 76, 77 Aboriginal peoples, 3, 15, 16, 28, 130, 132; and Aboriginal rights, 7, 45, 48, 132; and community economic development, 77-8; and constitutional reforms, 48; and non-representation in mainstream institutions, 122; and proactive education equity programs, 29; and reducing prejudice and stereotyping, 40; and self-governance, 124, 131, 131-2. See also First Nations, Inuit, Métis Aboriginal title, 48 Abrams, Kathryn, 13, 137 access: to equality rights justice, 135; to human rights justice, 14, 145; to justice, 4, 13, 63, 143 accommodation of differences and diversity, 17, 21, 23-7, 29, 47, 53, 52, 127; and democracy, 129. See also duty to accommodate Acker, Joan, 96, 99 Action Travail des Femmes, 6, 30, 86, 90

adverse effects discrimination, 6, 17, 24, 38, 51, 80, 133; definition of, 18-23. See also indirect discrimination; systemic discrimination affirmative action, 27, 28, 30, 47, 90; in US, 47. See also equity initiatives; employment equity; proactive legal strategies age-based discrimination, 54 agency, human: as dimension of equality, 4, 13, 137-9, 146; and human dependency, 107; individual, 141; individual and collective, 79, 137; and institutional change-makers, 79, 117; and responsibility for sexual harassment, 85; and social, economic and political constraints, 4, 12-3, 136; and storytelling, 69. See also partial agency Alcoff, Linda, 50 Alexander v. British Columbia, 32-3 ameliorative: government initiatives, 43; programs, 47, 56;

242

Index

purpose or effects, 43; state action, 53. See also contextual factors analogous grounds of discrimination, 39, 41, 44 Andrews v. Law Society of British Columbia, 38, 39, 40, 44, 128 anti-discrimination law(s), 5, 16-8; and caring, 114; and democracy, 126, 133 anti-essentialism, 50 anti-subordination, 50 Arbour, Justice, 55 Areen, Judith, 107 Arendt, Hannah, 75 Armstrong, Pat and Hugh, 100 Arsenault-Cameron v. Prince Edward Island, 131 aspectival identity, 50. assimilation, 15, 25, 34, 47, 48, 51, 130; pressures towards in dominant culture, 115 Auton (Guadian ad litem of) v. British Columbia (Attorney General), 45 autonomous, 75, 100, 107, 122, 131, 134 autonomy, 58, 95, 104, 107, 132 Backhouse, Constance, 81 backlash, socio-legal, 72 Baker Miller, Jean, 110, 111, 113 Bell v. Ladas, 81 Benhabib, Seyla, 109 Binnie, J., 45, 46 biological basis of discrimination, 20 Bliss v. Canada (Attorney General) (1979), 44-5

bona fide occupational qualification, 95 bona fide occupational requirement (bfor), 23, 24 bona fide policy, rule, or practice, 23 Brennan v. Canada and Robichaud, 84 British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 20, 133. See also Meiorin Brodsky, Gwen, 25, 26 Brooks v. Canada Safeway, 45 bureaucracy, 11, 92, 95, 96, 97, 98, 100, 115, 116, 117; and permanent inequality, 116-17; and sexual harassment, 95, 97, 98 Canadian Bill of Rights, 37, 44, 52, 53 Canadian Charter of Rights and Freedoms: and critiques of equality jurisprudence, 143; and democratic values, 128; and equality rights, 6-7, 37-64, 160n2; and minority language rights, 129-32; and voting rights, 128-9 Canadian Council of Persons with Disabilities v. VIA Rail, 24-5 Canadian National Railway Co. v. Canada (Human Rights Commission). See Action Travail des Femmes capture: phenomenon of, 72 caring, 12, 102, 103; dimensions of caring, 103-4; feminist

Index

conception of, 105-6. See also relations of caring categories: and approach to discrimination, 31-2; of discrimination, 21, 33; legal, 48, 50, 67, 69 Central Alberta Dairy Pool v. Alberta (Human Rights Commission), 24 Charter. See Canadian Charter of Rights and Freedoms child care policies, 75-6 Chinese Canadians: discrimination against, 15 citizenship: exclusion from, 122; and exclusion of women, 16; and formal equality, 47, 52; inclusive conception of, 13, 81, 119, 121, 123, 136, 138; and participation, 120; and persons with disabilities, 140; and Rousseau’s ideal, 122; social and political, 52; and the social investment state, 8, 58; socially diverse, 47, 51; and the social welfare state, 53, 54; vertical versus horizontal, 140; and voting entitlements, 119, 122, 129. See also non-citizens civil and political rights, 49, 51, 138 civil law: discriminatory dimensions of, 15 civil society, 120, 121, 122, 124, 128, 146 classical liberalism, 51, 53, 56, 59; vision of equality, 7, 52, 53, 54, 57, 60 Cobble, Debbie, 93

243

Cohen, Leah, 81 collective bargaining, 134 collective rights, 7, 46, 48, 60; collectivities, 51, 60, 130 colonialism, 50, 77; Aboriginal communities, 15, 48, 132 command and control approach to regulation, 17, 57, 59 common law: discriminatory exclusions in, 15 communicative democracy, 123. community identity, 4, 13, 137, 140, 141 comparative concept of equality, 44, 46, 62 comparator group, 44, 45, 46 complaint-based approach to human rights enforcement, 17, 28, 29, 30, 85, 101 concrete other: concept of, 109, 116 constitutional democracy, 124, 126, 128 constitutional equality: purposes of, 40, 4; rights, 6, 7, 37, 38, 41, 44, 48, 50, 51, 55, 56, 60 constitutional limits on rights, 47, 56, 75. See also R. v. Oakes consultation, 64, 133, 134; absence of, 63; employee, 134; forms of, 68 contextual approach, 7, 9, 10, 34, 38, 43, 65-79, 80, 86, 103 contextual factors, 9, 43, 61, 62, 63, 127 contingent work, 78, 143 Corbiere v. Canada (Ministry of Indian and Northern Affairs), 129

244

Index

corporations, 9, 10, 71, 120, 122 cosmopolitan democracy, 78 cosmopolitan pluralism, 58 Court Challenges Program, 145 Craig, David, 60 Crenshaw, Kimberlé, 32 critical mass, 27, 30-1, 89, 90, 98, 101, 133, 134 cultural and community identity/ affiliation, 48, 49, 50, 127, 129, 132 cultural inequities, 123 Day, Shelagh, 25, 26 decision-making processes, 4, 61, 62, 63, 70, 120, 122, 126, 134, 136, 146 deliberative democracy, 120-1, 123, 124, 127. See also democratic deliberation democracy, 12, 58, 102, 120, 127; conceptions of, 119-78; direct, 122; industrial, 120; interest group, 120. See also constitutional democracy, procedural democracy democratic: accountability, 78; constitutional, 124, 126, 128; decision-making, 123, 125; deliberation, 121, 122; governance, 12; participation, 63, 120-2, 127, 129; practices, 133; processes, 124; public, 68; relations, 11, 135; theory, 119-21, 133 dependence: human 52, 63, 107 deregulation, 8, 54, 56 Dickson, Chief Justice, 6, 30, 31, 98, 127, 131 differential effects, 18, 39. See also adverse effects discrimination

differential treatment, 18, 24, 39, 40; to accommodate groupbased needs and interests, 47, 130 direct discrimination, 6, 19, 21, 22, 38, 147; definition of, 6, 18, 19 disability, 21, 34; and discrimination in access to public transportation, 75; and experiential knowledge, 67; mental and physical 16, 33, 41, 45, 67, 77; and persons with disabilities, 28, 29, 37; rights, 29; rights advocates, 47 disadvantage. See social disadvantage; pre-existing disadvantage discrete and insular minorities, 41, 42, 44, 128 disempowered individuals and groups, 72 disparate: effects, 21, 43, 133, 135, 147; harm, 61, 62, 63, 147; impact discrimination, 18. See also adverse effects discrimination; indirect discrimination diversity, 13, 17, 36, 37, 38, 51, 52, 53, 73, 75, 77, 60, 61, 104, 109, 114, 137, 140, 141. See also complexity of identity; ethnocultural diversity; intersectionality domestic violence, 138 domestic work, 101 domestic workers, 21, 22, 91, 92 dominant groups, 26, 27, 34, 35, 36, 50, 51, 107, 111, 112, 114 dominant norms, 6, 15, 17, 20, 26, 27, 34, 35, 49, 51, 52, 71, 96

Index

domination, 50, 92, 95, 101, 111, 112, 117, 123 double discrimination, 31. See also intersectionality; multiple discrimination double jeopardy to harassment, 92 Duclos, Nitya, 109. See also Iyer, Nitya duty of care: and tort law, 115 duty to accommodate, 9, 24, 26, 29; factors regarding undue hardship and, 24; and failure to investigate possibilities of accommodation, 63; substantive and procedural dimensions of, 25, 63, 64. See also accommodation Dworkin, Ronald, 108 economic and social rights, 53, 138 economic and social well-being, 7, 11, 53, 54, 57, 62, 63, 77, 132 economic crisis. See global economic crisis economic restructuring, 78, 81, 86, 98, 99, 100, 143; and deskilling, 100; and increased vulnerability to harassment, 99 Edmonton Journal v. Alberta (Attorney General), 65 education and training, 52, 54, 55, 58, 75, 76, 77 educational institutions, 9, 70, 82, 119, 120, 126, 130 education equity initiatives, 30 egalitarian, 7, 53, 57, 90, 99, 102, 135, 148; egalitarianism, 77 effects-based: approach to discrimination 19-20; conception of equality, 6, 7, 47.

245

See also adverse effect discrimination; disparate impact; indirect discrimination empathy: and caring, 105, 107, 109 employer liability: in sexual harassment cases, 84, 85 employment equity, 28, 34, 78, 98, 102, 134, 142; definition of, 29, 30; legal justifications outlined, 30 Employment Equity Act, 6, 28, 134 empowerment, 60, 127, 132, 137, 138, 139 enlargement of mind, 75 enumerated grounds of discrimination, 16, 17, 32, 33, 39, 41 enumerated or analogous grounds approach, 39, 41, 44 equal treatment, 7, 8, 17, 27, 38, 39, 47, 51, 52, 53, 61, 115, 146. See also similarly situated approach equality of opportunity, 51; of outcomes, 8, 30, 38, 51, 52, 53, 77 equitable: distribution, 64; inclusion, 140, 146; outcomes, 8, 61, 77 equity initiatives, 27-31, 43, 72, 142. See also affirmative action; employment equity; proactive initiatives essentialism, 34, 48, 50, 140, 160n 85; essentialist conceptions of identity, 48, 49, 67, 105 ethic of care, 104, 105, 106, 115, 140. See also caring ethic of justice, 106

246

Index

ethnocultural diversity, 49 evidence: qualitative and quantitative, 70 Ewick, Patricia, 69 exclusion, 20, 22, 23, 27, 49, 58, 62, 63, 70, 103, 121, 134 economic, social, and political, 63, 66; and exclusionary processes, practices, 63, 64, 67, 68; formal and de facto, 121, 122, 123; involuntary and voluntary, 58 experiential: harm, 66; knowledge, 9, 10, 12, 66, 67, 68, 69, 79, 86, 131. See also narratives; stories facially neutral laws, policies, standard, categories, 21, 22 facilitative: law, 71; state, 59 fairness, 49, 54, 56, 64, 69, 73, 123, 137 families, 9, 26, 47, 49, 71, 75, 115, 119, 120, 122, 140, 141; familial relations, 104, 107, 115, 116 feminist: advocacy, 49; and analyses of law, 67, 75, 104; and conception of caring, 104-6; perspectives, 47, 50, 84, 104, 139; post-colonial scholarship, 49; voice, 13 feminized humanity, 47 federal contract compliance program, in US, 6, 28. See also employment equity; affirmative action Ferguson, Kathy E., 117 fiduciary relations, 115 First Nations, 32, 78. See also Aboriginal peoples freedom of expression, 47, 75, 125

formal equality, 6, 7, 8, 17, 29, 31, 38, 39, 47, 51, 52, 54, 61, 65, 115, 142, 146. See also procedural equality formal law, 9, 10, 16, 18, 71, 79, 135, 138, 146 formal rights, 53, 72, 73 Frazee, Catherine, 136, 140 Garland, David, 29, 59 gay and lesbian: communities, 49, 122; rights, 40, 47; criminalization of, 16. See also sexual orientation gender, 21, 28, 31, 75, 89, 95, 97, 99, 100, 105, 114; equality, 7, 26; inequities, 81, 123 gender-based: discrimination, 20, 30, 98, 133; disparities, 20, 29 Giddens, Anthony, 8, 57, 58 Gilligan, Carol, 67, 104, 105, 106 global: actors, 79; economic crisis, 8, 56, 57; economic restructuring, 99; state, 79 globalization, 13, 18, 79, 138, 142 Gosselin v. Quebec (Attorney General), 54-6 Gould, Carol, 124 governance: democratic, 12, 122, 121, 129; new forms of, 8, 57; small-scale, 120, 124; social, 5, 11, 57, 59, 60 government: role of, 7, 52, 56, 578, 146 government benefits: discrimination in allocation of, 42, 56 governmentality, 59 grounds of discrimination, 6, 16, 31-4, 41, 43, 44, 83, 145

Index

grounds-based: approach, 41; discrimination, 6, 46, 47 group-based: ameliorative programs, 47; differences, 24, 47; differential treatment, 18, 30, 39, 48; exclusion, disadvantage and harm, 34, 43, 61, 62, 67; identities, 27, 31, 47, 48, 49, 50, 67; inequality(ies), 63, 125; practices and traditions, 49; rights, 7, 38, 47, 48, 49, 129. See also collective rights; social disadvantage groups: historically disadvantaged, 25, 30, 40, 41, 44, 130, 139, 146, 147; historically excluded 28, 41, 62, 72, 133-4, 139; historically subordinated, 7, 48; historically underrepresented, 26, 122 Gutman, Amy, 120, 124 Habermas, Jurgen, 141 Hagen, Elisabeth, 99 harassment, 11, 22, 66, 72, 81, 82 83, 84-102, 126, 137, 144, 145, 147; psychological, 82, 144-5. See also racial harassment; sexual harassment harmful effects of discrimination, 20, 39, 41, 2, 61, 62-3, 134, 147; and contextual approach, 67-8; degree or extent of, 63, 147; on privileged groups, 121; relative versus absolute, 44; and sexual harassment, 80, 83, 85, 96; and victimization, 139 Harris, Angela, 140 Harvey, Brett, 94 hegemonic masculinity, 96

247

hegemonic stories, 69 Held, David, 78 Henderson, Lynne, 107, 108 heterosexism, 96, 102; heterosexist, 97, 101 hierarchy: forms of, 70, 75, institutional, 72, 73, 96, 99,117, 122, 134, 135; supervisory, 81, 99, 101 historic disadvantage, 25, 40, 41, 129; redressing as purpose of constitutional equality, 41 historically disadvantaged groups. See groups historically excluded groups. See groups historically subordinated groups. See groups historically underrepresented groups. See groups Hodge v. Canada (Minister of Human Resources Development), 45-6 Howe, R. Brian, 142, human dignity, 7, 16, 37, 40, 42, 43, 52, 55, 60, 116, 127, 147; as purpose of constitutional equality, 40, 42 human rights commissions, 30, 37, 142, 143, 144; British Columbia and Canada, 144; Ontario, 144 identity: complexities of, 13, 18, 31, 32, 34, 49, 125. See also diversity; ethnocultural diversity; intersectionality identity politics, 47, 48, 49 ideology: and inequality, 111; of legal centralism, 71; of male supremacy, 115; of neo-liberalism 7, 57; of

248

Index

normalcy and deviance, 35-6; of white supremacy, 15 immigrants, 77; new, 77, 91 immigration : law, 16, 92; regulation, 91 immutability, immutable: constructively, 44 impartiality, 75. inclusive democracy, 124, 127 inclusive equality: definition of, 4-5, 8-9, 11, 61-2, 64, 146, 147-8 Inco: and women in nontraditional jobs, 88, 90 indigenous communities, 77, 132. See also Aboriginal peoples; Aboriginal communities indirect discrimination, 6, 18, 21, 22. See also adverse effect discrimination; disparate impact discrimination individual agency, 4, 13, 79, 136-7, 138, 139, 141, 146. See also partial agency individual complaint: approach, 29, 85; process, 28, 81, 83, 101, 142 individual identities, complexity of, 18, 125. See also intersectionality; diversity individual rights, 38, 41, 48, 49, 51, 60, 124; and individualism, 52 inequitable distribution, 23 inequitable opportunities, 23; inequities 27, 29, 31, 36, 51, 68, 73, 81, 85, 119, 123, 143 informal law, 9, 71, 137, 146 informal norms, 9, 73 informal rules and practices, 72 institutions: social, 20, 71, 72, 116, 117, 118, 120, 121, 125, 126,

127, 128, 135; social and economic, 71, 134 institutional: change, 17, 26, 31, 85, 134; culture, 80; governance and decision-making, 73, 79; hierarchies, 122, 134; inequalities, 13, 28, 73; mechanisms for group-based representation, 125; norms, 9, 72, 96; practices and policies, 10, 70, 73, 121; realities, 71; resistance to change, 72, 73; and social relations, 35, 66, 70, 103, 126; status quo, 68. See also systemic inequality; social institutions. instrumental conception of law, 52 instrumentalist: state, 59; understanding of law, 17, 71, 79 intentional discrimination, 17, 18, 23; intent to discriminate, 20 intergenerational reproduction of equality, 61, 64 intersectionality, 33; definition of, 32; and inequality, 18, 32; and interplay of sexism, racism, and other types of inequality, 101. See also complexities of identity; multiple discrimination; double discrimination Inuit, 78. See also Aboriginal peoples isolation: and harassment, 11, 80; for women in non-traditional jobs, 86-90, 101; and women in traditionally female jobs, 91-3, 101 Iyer, Nitya 32, 83. See also Nitya Duclos

Index

Janzen v. Platy Enterprises, 98 Japanese Canadians: discrimination against, 15 Jenson, Jane, 58, 99 Jewell, Lori, 90 Jewish community: discrimination against, 15 Johnson, David, 142 judicial bias, 74 Kabeer, Naila, 140 Kanter, Rosabeth Moss, 100 Kapur, Ratna, 84 Keynesian social welfare state, 7, 52, 53, 56, 57, 60. See also redistributive state Kreiger, Linda Hamilton, 72 Kymlicka, Will, 49 labour market: sex-segregated, 94, 98 labour standards, 21, 78 labour union, 122, 123. See also trade union La Forest, Justice, 37, 84, 126 Larner, Wendy, 60 Law v. Canada (Minister of Employment and Immigration), 39, 40, 42, 43, 62 legal categories. See categories legal centralism, 71 legal formalism, 41, 44, 45, 61 legal pluralism, 70, 71, 72, 73; legal pluralists, 71; multiple or plural normative orders, 70 legitimacy: of constitutional review, 123-4 legoism, 58; lego model, 59

249

lesbian and gay rights, 47, 49; invisibility and inequality, 16 lesbians: inclusion of, 122 L’Heureux-Dubé, Justice, 55, 74, 129 liberal values: of freedom, justice and democracy, 49 liberty, 54, 115, 124 linguistic minority rights, 7. See also minority language rights linguistic minority communities, 48, 124, 130, 131. See also minority language rights Lister, Ruth, 138 living tree metaphor: in constitutional law, 66 local partnerships, 60. See also public-private partnerships Lorde, Audre, 112 MacKinnon, Catharine, 81, 93 MacPherson, C.B. 119 macro-context, 9, 10, 11, 74, 75, 86; macro-contextualism, 66, 74, 78 macro-level, 66, 103 Mahé v. Alberta, 131 majority rule, 121, 123, 124, 127; will of, 128 majority status, 130 male-dominated jobs: women in, 81, 87, 96, 105 marginalized: collectivities, 51; groups, 58, 127; people, 67; workers, 78 marital status: discrimination on the basis of, 46 markets, 54, 115; market relations, 115–16

250

Index

master-slave relationship, 111. See also slavery Matsuda, Mari, 3, 109 McIntyre, Justice, 19, 38, 39, 44 McIntyre, Sheila, 88 McLachlin, Chief Justice, 26, 31, 55, 74, 129 Mead, Margaret, 97 Meiorin, 23, 24, 26. See also British Columbia (Public Service Employee Relations Commission) v. BCGSEU mental disability. See disability mentoring, 12, 70, 136 Merry, Sally Engle, 71 meso-context, of inequality, 9, 10, 66, 70-4, 80, 101-2 Métis, 78. See also Aboriginal peoples micro-context, 9, 10, 11, 66-70, 80 Miles, Angela, 47 Mill, John Stuart, 128 minorities: discrete and insular 41, 42, 44, 128 minority language rights, 48, 132; and language communities, 130, 131, 132; and language education, 48, 60, 124, 130, 131. See also linguistic minority communities minority: communities, 51, 115; rights, 121, 123, 124, 127, 128, 130, 131; status, 130; voices, 12 Minow, Martha, 35, 48, 74 Monture, Patricia, 11, 31, 103, 110, 118, 159n73 Mothering: and caring, 104,106; and transformed maternal thought, 106

multicultural, 141; heritage, 164n42 multiculturalism, 7, 49; multicultural vulnerability, 49 multiple discrimination, 32. See also double discrimination; intersectionality narratives, 9; of exclusion, 67; of inequality, 68; limits of, 69. See also experiential knowledge; stories; voice national security, 56-7; and terrorism, 56, 57 national origin: discrimination based on, 16, 21 Nedelsky, Jennifer, 35, 74, 75, 107 negative liberty, 54 negative rights, 7, 52 neo-colonialism, 50, 77 neo-conservativism, 8, 145 neo-liberal, 8, 53, 54, 56, 57, 58, 60, 142 neo-liberalism, 7, 8, 52, 53, 56, 57, 58, 142 Noddings, Nel, 105, 109, 110 non-citizens, 122, 128. See also immigrants non-interventionist state, 8, 57 non-standard employment, 78 non-state: actors, 59, 60, 141, 142; normative order, 71 norms: of everyday life, 13, 71; and multiple or plural normative orders, 70, 71, 72; and practices, rules, and workplace culture, 70; and the workplace, 26, 85. See also legal pluralism; normativity normativity: informal, 70

Index

North American Agreement on Labor Cooperation (naalc), 78 Okin, Susan Moller, 105 oppressed: collectivities, 130; groups, 68, 125. See also groupbased inequalities Organizational: power, 96; structures, practices, 22, 80, 85, 92 parent-child relationship/ parenting, 111, 112, 113, 115 partial agency, 13, 117, 137. See also agency, individual participation, 55, 58, 119, 120, 121, 122, 123, 126, 127, 134, 138, 139; inequitable, 128 participatory democracy, 12, 73, 120, 125, 127, 129, 133, 134, 135. See also democratic participation partnership: public-private, 8, 59, 60 paternalism, 104, 114; paternalistic, 101 Pateman, Carole, 120 patriarchy, 50; patriarchal families, 115 Patterson, Dennis, 74 pay equity, 6, 29, 78, 134, 142, 144; commissions and tribunals, 30 permanent inequality, 12, 110, 111, 112, 113, 114, 115, 116, 117, 118; relationships of, 113 permanent residents, 122. See also non-citizens; immigrants perpetrator, 80, 35; of harassment, 83; isolated, 73; perspective, 10, 17, 20, 28, 82, 83

251

persons with disabilities. See disability physical disability. See disability, physical politics of accountability, 50 pornography, 87, 88, 89 positionality, 50 positive: government intervention, 52; rights, 7, 53, 55 post-neoliberal, 57, 60, 146 post-welfarist, 60 Pothier, Dianne, 46 poverty, 10, 52, 53, 55, 56, 74, 75, 78, 109, 115; feminization of, 75 power structures, 11, 70, 139; and inequality, 112 pre-existing disadvantage, 43, 61, 63; as contextual factor in determining violations of substantive equality, 61, 63 pregnancy: discrimination on the basis of, 44-5, 95 prejudice, 15, 17, 19, 23, 39, 40, 41, 42, 43, 44, 47, 61, 62, 67, 68, 69, 74, 103 preventive approach, 27, 52, 81; and discrimination, 4, 6, 25, 37, 41, 133 Pringle, Rosemary, 94, 95, 97 privatization, 8, 13, 52, 53, 54, 60, 142; privatized, 54 privilege, 9, 10, 49, 68, 112, 115, 117, 119, 123; social, 12, 23; and social groups, 29, 35, 41, 58, 62 proactive: legal strategies, 73; sexual harassment policies, proactive strategies, 101; systemic and preventive

252

Index

approach, 81, 86. See also equity initiatives; affirmative action procedural democracy, 124. See also democracy procedural dimensions: of equality and inequality,4, 8, 25, 64, 136, 147; processes 60-1; processbased exclusions, 62 procedural equality, 29, 39, 61. See also formal equality professions, 16, 22, 70, 96, 105, 122 property: and democracy, 119, 120; entitlements, and permanent inequality, 115 protective legislation: and gender equality, 41 public-private partnerships, 8, 5960 public-private split, 59, 139 purposive interpretive approach, 7, 37-8, 43, 44, 60 Quebec Charter of Human Rights and Freedoms, 16 Quebec Human Rights Tribunal, 22, 144, 145 R. v. S (R.D.), 74 R. v. Kapp, 39, 40 R. v. Mills, 128 R. v. Oakes, 56, 127 race discrimination, 32; race-based discrimination, 16, 21, 33 racial harassment, 82. See also harassment racialized: communities, 3, 40, 49, 47, 67, 143; minorities, 57; women, 31, 32

racism/ racist, 15, 28, 74, 102; exclusions, 15; sexuality in workplace, 97, 101 rape: of domestic workers, 91; overlapping sexist and racist dimensions of, 92 Razack, Sherene, 50, 69 Rawls, 108; concept of justice, 108 reasonable limits. See constitutional limits; R. v. Oakes reasonable person, 55 reciprocity of caring, 106, 107. See also caring redistributive: social welfare state, 77; social welfare values, 54; state, 7, 53, 60 Reference re Secession of Quebec, 127 regulation, 17, 52, 60, 142; approaches to, 30, 56, 57; and equality rights, 27, 29, 34; of expression, 75; and immigration, 91; indirect forms of, 29; and labour standards, 21; retroactive regulation, 29. See also deregulation regulatory state, 7, 8, 38 relational: conception of equality, 9; dimensions of inequality, 345, 73; and exclusionary processes of discrimination, 634; relational approach to ethical problems, 104 relations of care, 11, 12, 103, 115, 140, 147. See also caring relations of democracy, 11, 102. See also democratic relations; participatory democracy

Index

religion: discrimination based on, 16, 19, 21, 24, 115, 140, 147 religious: communities, 49; diversity, freedom of religion, 37, 47, 49; minorities, 3, 22, 40, 57 remedies, structural, systemic, and institutional, 27, 28, 30, 64, 73, 136, 139; and importance of transformational, experiential, and bottom up approach, 68; and individualist bias in sexual harassment cases, 84; to reinforce agency rather than victimization, 137-9; and responsibility of governments, 137; strategies, 70, 126. See also retroactive remedies; systemic inequality; systemic discrimination representation, 68, 122, 124, 125, 134; group-based, 49, 125. representative democracy, 119, 120 residential schools, 48 respect, 7, 13, 40, 42, 63, 102, 103, 108, 109, 124, 127, 136, 137, 139, 141 responsibilization: strategies of, 59 restructuring: of human and institutional relationships, 11, 73, 64, 136 retroactive remedies, 17, 29, 85, 138. See also remedies reverse discrimination, 30 Rich, Adrienne, 104 rights discourse, 71, 143 Rocher, Guy, 79 Rousseau: conception of ideal citizen, 122

253

Royal Commission on Aboriginal Peoples (RCAP), 132 Royal Commission on Equality in Employment, 28-9 role of the state. See state, role of Ruddick, Sara, 104, 106 rule of law, 15, 37, 109, 123, 127, 128 Saint-Martin, Denis, 58 sameness of treatment, 41, 51; and approaches to equality, 17, 35, 39, 40, 47 same sex marriage, 37 Sassen, Saskia, 79 Sauvé v. Canada(Chief Electoral Officer), 129 schools, 4, 10, 22, 71, 120, 126, 130, 131, 134, 136. See also educational institutions secretarial work: and sexual harassment, 94, 95, 97, 100 section 1, Charter, 56, 64. See also reasonable limits; R. v. Oakes section 15, Charter, 160n2 Segal, Nancy, 26 segregation: of labour market, by sex, 98; of persons with disabilities, 16 self-government, 60, 77, 124, 129; self-governance, 129, 130, 132 separate spheres ideology, 16, 93, 94 sex-based harassment, 87 sexism, sexist, 20, 81, 83, 86, 89, 92, 95, 98, 99, 101 sexual harassment, 10, 75, 80-102, 113, 126, 144; as sex discrimination, 82. See also harassment, racial

254

Index

sexual history: of complainant in sexual harassment cases, 83, 84 sexual identity, 49 sexual relations: consensual and noncoercive, 97, 98; in workplace, 97 sexual orientation: discrimination on the basis of, 16 sexualization: of jobs, 93, 96, 102; of women’s work, 11, 78, 81, 93, 95, 96, 97 Shaman, Barbara, 88 sheltered workplaces, 77 Shime, Adjudicator, 81 Silbey, Susan, 69 similarly situated approach, 8, 39, 43 Simpsons-Sears v.O’Malley, 19, 24 Silvera, Makeda, 91 slavery, 15, 91. See also masterslave relationship social capital, 8, 59, definition of, 59 social change, 3, 4, 13, 18, 52, 57 social construction: of difference, 20, 35; of disability; of disadvantage, 63; of gender roles, 97; and vulnerability to harassment, 101 social disadvantage, 9, 41, and groups, 34, 41, 125; remedying as purpose of constitutional equality, 40, 41. See also groupbased social cohesion, 141 social exclusion. See exclusion social governance. See governance social group(s), 18, 19, 22, 29, 40, 48, 49, 58, 60, 66, 69, 112, 124, 136

social inclusion. See inclusion social institutions. See institutions social investment: public policy, 59; state, 8, 58, 77 social movements, 47, 48, 139, 143 social rights. See economic and social rights social welfare state, 8, 51, 52, 56, 57, 54, 142. See Keynesian social welfare state; redistributive state socially disadvantaged groups. See disadvantage sociology of law, 79 solidarity, 4, 13, 79, 92, 93, 100, 101, 137, 139, 140, 141, 146 Sparks, Corinne, 74 special exemption clauses in human rights legislation, 29, 158n68 special measures, 29. See also affirmative action; proactive equity initiatives Spelman, Elizabeth, 74 standpoint theory, 67 state action, 53, 59; doctrine 59 state, role of, 7, 8, 51, 137, 142, 143. See also regulatory state statistically significant exclusions, 21 status-based inequality, 12 status quo: institutional, 26, 51, 68, 72, 85, 126 statutory human rights protections, 16, 30, 126. See also anti-discrimination stereotypes, 5, 84, 94, , 97, 102, 107; gender-based, 16, 96; negative, 5, 17, 19, 23, 27, 69 stereotyping, 39, 40, 41, 42, 43, 44, 69, 147

Index

stories, 9, 10, 11, 66, 69, 70, 74, 86, 91; of discrimination, 66; of exclusion, 66, 66; hegemonic versus subversive, 69; of inequality, 64, 75. See also narratives; experiential knowledge; voice Sturm, Susan, 73, 85 structural: exclusionary practices, 63, inequality, 13, 61, 75, 112; and societal patterns of inequality and exclusion, 66; and systemic manifestations of discrimination, 80 subordinated communities, 48 subordination, 50, 96, 102, 105, 110, 111, 112, 115 subordinate group(s), 7, 34, 50, 111, 112, 114, 117 substantive equality, 6-9, 38-44, 51-7, 60-4, 129-32, 146-8. See also effects-based conception of equality subversive stories, 69 Summer, Angela, 87, 89, 90 supervision, 98, 99; and abusive power, 100, 101, 102; gendered and sexist patterns, 99, 100; paternalistic, hierarchical, and abusive practices, 99, 101 supervisory structures, 81, 86 supply side egalitarianism, 58, 77 survivor benefits, 45, 46 survivors, 93, 137, 139 systemic discrimination, 5-6, 10, 18, 21-3, 28, 38, 52, 119; and democratic practices, 133-5; and duty to accommodate, 25-6; and equity initiatives, 27-31; and

255

isolation of women in nontraditional jobs, 86-7; and recognition by Supreme Court of Canada, 30; and relational dimensions, 35; and sexual harassment, 80, 82. See also adverse effect discrimination systemic inequality, 9, 17, 23, 31, 68, 75, 84, 126; and contexts of inequality, 70, 74, 81; and the reproduction of inequality and exclusion, 61, 63, 64, 66; and vulnerability to harassment, 85. See also systemic discrimination remedies Taylor, Charles, 48 teacher-student relationship, 111, 112 technological change, 99, 100 temporary inequality, 12, 110, 111, 112, 114, 115, 118; relationships of, 112, 113 third way, 8, 57, 58 Thompson, Dennis, 120, 124 Thornton, Margaret, 80, 93, 95 tokenism: problem of, 31 tokens, 31, 112, 141 trade union, 122. See also labour union traditionally female jobs: vulnerability to harassment, 75, 81, 91-101 traditionally male jobs: vulnerability to harassment, 86-90 transformative: approach, 26-7, 135; law, 72, 73; vision of equality, 31, 126 Tronto, Joan, 105, 108, 115, 116 Tully, James, 50

256

Index

undue hardship, limits of duty to accommodate, 24, 25, 26 under-represented groups, 29, 125 Unger, Roberto, 140 unintentional discrimination. See adverse effects discrimination Universal Declaration of Human Rights (1948), 16 universities, 10, 15, 29, 71, 77, 92, 122, 134, 136 unwelcome standard: in sexual harassment cases, 82, 83 US Executive Order 11246, 27 VIA Rail, 25 victimization, 49, 69, 137, 138, 139, 140 visible minorities, 28 Vriend v. Alberta, 127 voices, minority, 12, 128; absence of, 61, 122; of disadvantaged groups, 68, 125; and empowerment, 137; of exclusion, 66, 68; and identity, 69; and In a Different Voice, 104; mechanisms for amplifying, 13; processes for hearing, 64; of the vulnerable, 128. See also narratives; stories; experiential knowledge

voting rights/entitlements: equality in 15, 122, 128, 129; of offreserve Indian band members, 129; of prisoners, 129; of women, 16 waitresses: and sexual harassment, 92, 93, 95; and solidarity, 93; and work culture, 93; Weins, Laurene, 88, 90 welfare state, 58. See also social welfare state; Keynesian social welfare state Whitbeck, Caroline, 105 white supremacy, 15, 50 Williams, Joan, 26 Wilson, Justice, 41, 65, 128 women: discrimination against, 3, 16, 20, 50, 95, 98; status of, 99 women’s movement, 47 women’s rights, 49 work culture, 87, 93 workplace: equality, 10, 30, 76, 77, 78, 85, 101, 143, 144; hierarchies, 75, 98; as micro-democracy, 126; standards, 24, 133 workplace culture, 11, 90 Young, Iris Marion, 12, 68, 121, 123, 124, 125, 141