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Equal in theory : an assessment of anti-discrimination statutes as equality tools for people with disabilities Patch, Tom W. 2005

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Equal in Theory: An Assessment of Anti-Discrimination Statutes as Equality Tools for People with Disabilities by T O M W. P A T C H B.A. (Hons.) Concordia University, 1977 L L . B . University of British Columbia Faculty of Law, 1988 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF M A S T E R OF L A W S in THE F A C U L T Y OF G R A D U A T E STUDIES THE UNIVERSITY OF BRITISH C O L U M B I A August 2005 © Tom W. Patch, 2005 Abstract In recent years, the enforcement of Canadian human rights statutes has been the subject of much criticism. That criticism comes not only from organizations that are required to change their practices to comply with the statutes, but from advocates who question the effectiveness of human rights enforcement. Studies which attempt to address these criticisms generally review the criticisms and then seek to modify the enforcement models to ameliorate the problems which have generated the criticism. This thesis considers the problem from a more theoretical perspective. With a focus on disability, this thesis considers whether Canadian anti-discrimination statutes, which were created when the prevailing theory of equality was a formal one, are capable of achieving substantive equality as it is now conceived. Applying a disability rights perspective, substantive equality for people with disabilities requires that a wide and complex variety of barriers be removed. These barriers may result from intended or unintended discrimination. They may be physical or attitudinal. They may be isolated, individual acts or they may reflect widespread societal norms. To eliminate such an array of barriers, anti-discrimination statutes must include a range of powers and procedures: they must incorporate provisions that protect people with disabilities from such barriers; they must provide mechanisms to identify the barriers; there must be mechanisms to determine whether the barriers contravene the protected right; and the statutes must provide effective remedies. This thesis concludes that contemporary human rights enforcement models are capable of effectively addressing many individual barriers to equality for people with disabilities. However, under a complaint-based model, human rights agencies cannot effectively address barriers that result from the operation of widespread norms. Canadian human rights agencies are therefore limited in their ability to achieve the societal transformation that is necessary to achieve substantive equality for people with disabilities. For such equality to be realized, anti-discrimination statutes must be seen as just one facet of a much broader approach. 11 T A B L E OF CONTENTS Abstract i i Table of Contents i i i Acknowledgements , vi Introduction 1 1. Structure of the Thesis 4 2. A Note on Terminology 10 (a) "Human Rights" or Anti-Discrimination" 10 (b) "Disability" 10 (c) "Disabled Person" or "Person with a Disability" 13 3. About the Author 14 Chapter I: Human Rights Legislation 1 7 1. Introduction 17 2. Discrimination before World War II 19 3. Introduction of Anti-Discrimination Laws 26 4. Fair Practice Statutes 28 5. Consolidated Statutes 32 6. Disillusion 35 7. Conclusion 37 Chapter II: The Idea of Equality 39 1. Introduction 39 2. The Vocabulary of Equality 43 (a) Formal and Substantive Equality 43 (b) Individual and Group Equality 45 (c) Equality of Treatment, Opportunity, or Result 46 (d) Negative and Positive Rights 52 3. Perspectives on Equality 54 (a) Liberal Perspectives 56 (b) Feminist Perspectives 60 (c) Summary 64 4. Judicial Perspectives 65 5. Conclusion 68 ii i Chapter III: Equality and Disability 7 0 1. Introduction 70 2. The Medical Model 74 (a) Genesis of the Medical Model 74 (b) Medicalization of Disability 78 (c) The Ideology of the Medical Model 80 3. The Social Model 84 (a) The Ideologies of the Social Model 84 (b) The Disability Rights Movement 88 4. Disability and Equality 99 (a) Disability Rights and Equality Theory 99 (b) Minority Rights Analysis ' 109 (c) Universalism 121 5. Conclusion 126 Chapter IV: Mapping Equality 1 2 8 1. Introduction 128 2. Discrimination and the Burden of Proof 131 (a) The Meaning of Discrimination 131 (b) Burden of Proof 134 (i) The Prima Facie Case 135 (ii) The Respondent's Defence 138 3. Direct Discrimination 142 (a) Individual Bias 142 (i) Overt 143 (ii) Covert 152 (iii) Summary 161 (b) Exclusionary Classifications 162 4. Adverse Effect Discrimination 171 (a) Neutral Practices and Structural Barriers 171 (b) Summary 187 5. Conclusion 189 Chapter V: The Structure of Equality 1 9 1 1. Introduction 191 2. A Brief History of the Legislation 195 (a) The Council of Human Rights 197 (b) A New Code 202 3. Analyzing the Models 206 (a) The Commission Model 207 (i) Overview of the Model 207 (ii) Identifying Inequality 209 (iii) Proving Discrimination 212 (iv) Righting the Wrong 218 (b) The Direct Access Model 221 iv (i) Overview of the Model 221 (ii) Identifying Inequality 226 (iii) Proving Discrimination 229 (iv) Righting the Wrong 234 4. Conclusion 234 Conclusion ••• 2 3 9 1. Introduction 239 2. Some Legislative Alternatives 242 3. Conclusion 247 Bibliography 2 5 1 \ v Acknowledgements Many thanks to my friends and family who encouraged me to return to school after a long absence, and who supported me during the sometimes lonely creative process. Without them, this thesis would not have been written. I am also grateful for the generous financial support of the Cordula and Gunter Paetzold Fellowship, which provided substantial funding for my research. I am particularly grateful to Professors Margot Young and Bi l l Black for the care with which they reviewed drafts of this thesis and for their insightful and challenging comments and suggestions. I am deeply appreciative of their support for and encouragement of not only my thesis project but also of my efforts to move my career in a new direction. Thanks. vi Introduction Our fascination with equality lies not in mere theory or established practice, but in the repeated moment of transition from theory into practice. The importance of this moment is obvious, since it forces an abstraction's sterile form to accommodate life. Trying to make laws or families or universities live up to the doctrine of equality is the point at which we discover egalitarianism as a living conception.1 This project explores that moment when theory intersects with practice. In particular it examines whether the legislative tools that aim to achieve equality are capable of meeting that goal. Human rights statutes, particularly anti-discrimination legislation, began to appear in Canada shortly after the Second World War. In the 1960s, 1970s, and 1980s the statutes became more comprehensive and established publicly-funded mechanisms to investigate and enforce complaints of discrimination. These changes were, in part, a result of the perceived failure of earlier enforcement mechanisms to address discrimination. They also reflected a growing belief that discrimination hurt more than the individuals affected; it was also a public wrong and therefore required a public response. Recently, the public's confidence in the effectiveness of human rights agencies has eroded. In the past decade, there have been reviews of human rights enforcement in a number of 1 Douglas Rae, Equalities (Cambridge: Harvard University Press, 1981) at 4. 1 Canadian jurisdictions.2 Some are internal reviews, some external; some are government initiated and sponsored, some the result of independent scholarship. These reviews reflect and document concerns among stakeholders that human rights statutes are not achieving the purposes for which they were intended. Rights-seekers complain that human rights agencies have become over-burdened with individual complaints at the expense of broader systemic equality issues; employers and service-providers complain that the enforcement mechanisms are an undue burden. At times both sides argue that the system favours the other side, and there is near universal concern that complaints take too long to process. These reviews are, to varying degrees, empirical. They examine an agency's processes, assess its effectiveness and make recommendations for change. The starting point is an existing agency. And the conclusions and recommendations are based on some measure of the effectiveness of that agency. These reviews are valuable in understanding how human rights agencies are functioning and where they are failing. Some of their recommendations have been implemented, some not. The most dramatic response has been in British Columbia where recent legislative amendments created a direct-access system in which human rights disputes are addressed largely as a private matter, with little role for those advocating a public interest. 2 See, for example: Ontario Human Rights Code Review Task Force, Achieving Equality: A Report on Human Rights Reform (Toronto: Ministry of Citizenship, 1992); William W. Black, BC Human Rights Review - Report on Human Rights in British Columbia (Vancouver: Ministry Responsible for Multiculturalism and Human Rights, 1994); Donna Grechner et al., Renewing the Vision: Human Rights in Saskatchewan (Saskatoon: Saskatchewan Human Rights Commission ,1996); Gerard V. La Forest et al., Promoting Equality: A New Vision (Ottawa: Canadian Human Rights Review Panel, 2000) 2 During this evolution of human rights legislation, equality theory has also been transforming. The formalistic theories of equality that were prevalent in the post-war period have been replaced by theories that focus on a contextual analysis of equality. Equality is no longer just a question of ensuring that all people are treated the same; equality theorists and advocates now look more broadly at the impact of policies and practices on the ability of people to participate in and receive the benefit of society and its institutions. M y aim is to investigate whether Canadian human rights statutes are useful tools to achieve equality as it is now conceived. This project differs fundamentally from previous reviews. They sought to advance equality by investigating the effectiveness of an existing agency; I use equality theory to try to build an effective agency. One of the shortcomings of the various reviews of human rights statutes is that, while the recommendations seek to incorporate contemporary theories of equality, they do so by revising enforcement models that were initially designed to address more formal conceptions of equality. Rather than beginning with a review of the effectiveness of an existing agency, my focus is on the relationship between equality theory and the practical utility of anti-discrimination statutes. M y approach thus is primarily theoretical rather than empirical. I will un-bundle equality theory to identify some particular inequalities that must be eliminated i f equality is to be achieved. I will relate those inequalities to discrimination theory and identify the statutory powers and procedures that would be required to achieve such equality. And I will then use actual legislation, in this case British Columbia's, to consider whether it incorporates the powers and procedures necessary to achieve equality. 3 Consideration of the effect of human rights statutes on all of the groups protected by the legislation is beyond the scope of this thesis. M y focus will be physical disability, and I will use the lens of disability rights. I adopt the disability rights lens for several reasons. I have a personal interest in the subject of disability, but there are also practical and scholarly reasons to focus on disability. By almost any measure, people with disabilities are unequal. As discussed below in Chapter III, they are more likely to be poor, unemployed, and undereducated than other segments of society. They are marginalized by those factors and by a complex and varied array of barriers to full participation including inaccessible physical or social structures and prejudice. Finding effective mechanisms to achieve equality for people with disabilities is therefore an important and difficult challenge. And it is a challenge that is relevant beyond the area of disability. The inequalities associated with disability may be caused by simple prejudice or bigotry, by misunderstanding or misconceptions, or by the organization or structure of society's institutions. By looking at equality through a disability rights lens, it is therefore possible to observe a range of inequalities that will include the types of inequality that are of concern to other equality-seeking groups. Moreover, disability, as one of the newest subjects in equality rights discourse, incorporates the most current conceptions of equality. Conclusions drawn from an analysis of disability rights will therefore be relevant to those studying other areas of (in)equality such as gender or race. 1. Structure of the Thesis M y goal is to bridge the gap between theory and practice by assessing the effectiveness of current Canadian human rights statutes in achieving equality, particularly for people with 4 disabilities. I will address three questions: First, what theory of equality should be used to measure the effectiveness of human rights agencies? Second, what powers or procedures will enable agencies to bring about the change necessary to achieve equality? And third, do contemporary Canadian human rights statutes incorporate those powers and procedures? Generally, the paper moves from the theoretical to the practical and from the general to the specific. The first chapter provides an introduction to the development of Canadian human rights statutes. The legislation arose out of a recognition that our judges and legislators had failed to provide an adequate response to the social injustice of discrimination. The chapter begins, therefore, with a discussion of the social context from which emerged the demand for human rights legislation. I then review the development of human rights statutes from their introduction in the 1950s and the creation of Human Rights Commissions in the 1960s, to their expansion in the 1980s. Chapter I concludes with discussion of some of the criticisms of those statutes that were expressed in the 1980s and gained momentum through the 1990s. Chapters II and III provide an answer to the first question: what theory of equality should be used to measure the effectiveness of human rights agencies? Chapter II provides an introduction to equality theory. Academic scholarship on equality is rich and diverse. There are equality theories representing the range of political orientation from conservative to socialist. Even within a particular orientation, such as liberalism, there are a variety of perspectives from which to view equality. And the perspectives do not always use the same vocabulary to describe equality. In order to analyze equality, it is necessary to give it some 5 definition. The chapter therefore begins with a discussion of some of the language of equality. I then turn to a discussion of some of the more influential theories of equality, focusing on some of the liberal and feminist perspectives. The purpose of this chapter is not to resolve the conflicts that arise from the varied perspectives, nor to determine their merits. Rather, it is to provide a theoretical background for the analysis that follows. Some equality theorists begin with the question of whether equality is an interest that ought to be promoted or protected through state intervention. Implicit in the purpose of this thesis is an assumption that the state will intervene at some level to protect or promote equality. However, while I begin from the position that equality is a fundamental interest that justifies state intervention, differing equality theories reach different conclusions about the goal of such intervention: is it that all people should be treated the same, or that they should all have the same opportunity to share in what society has to offer, or should they all have the same share in society's resources and opportunities? It is possible to conceive of human rights agencies being created to address each of those possibilities. I seek a practical outcome, one that reflects the real-world application of the law. Human rights agencies are required to apply their statutes in a manner that is consistent with judicial interpretation. Therefore, in answering the first question, I will consider the meaning of equality as it emerges from judicial reasoning. Chapter II concludes with a discussion of Canadian judicial interpretations of the meaning of equality. Those interpretations vary, and are not consistently applied. Nevertheless, they provide some boundaries within which human rights agencies must operate when applying their statutes. Although judicial statements on the 6 meaning of equality are often the subject of a critical analysis, my aim is simply to identify the current doctrinal limits of anti-discrimination laws. In assessing the utility of human rights laws as a tool for equality, I must move from general theories of equality to their application. For example, a particular theoretical conception of equality may, in its practical application, operate differently for racial minorities than for women. One group may seek substantive equality by creating a world that ignores differences between groups, while another may seek it through the accommodation of, or focus on, difference. M y lens is disability rights. Chapter III identifies the changes that must be accomplished i f people with disabilities are to achieve equality. However, there is not a unified vision of equality for disabled people. I will use the lens that developed out of the disability rights movement. To appreciate that perspective, it is necessary to be familiar with the context to which it responds. The disability rights movement was in large measure a reaction to the vision of disability that was dominant prior to the 1970s. That vision - the medical model - is deep-rooted. The chapter begins with a discussion of the genesis and content of the medical model of disability, then examines the disability rights movement and the model of disability that informed that movement (i.e., the social model). Finally, the application of equality theory to people with disabilities is discussed, concluding with a the debate over the impact on equality for disabled people of laws that prohibit discrimination. In Chapter IV, I address the second question: what powers or procedures will enable agencies to bring about the change necessary to achieve equality? People with disabilities face a variety of barriers to equality. The effectiveness of anti-discrimination statutes may be 7 measured by their effectiveness at eliminating those barriers. The meaning of "discrimination", like "equality", is complex and disputed. Therefore, the chapter begins with discussion of the conceptions of discrimination that are encompassed by anti-discrimination statutes (either expressly or through judicial interpretation). I then analyze those conceptions of discrimination to identify the particular powers and procedures that are necessary to eliminate barriers to equality for people with disabilities. Chapter IV concludes with a tentative answer to the third question: do contemporary Canadian human rights statutes incorporate the powers and procedures necessary to achieve equality? In Chapter V , further light is shed on this question by making the analysis more specific and practical. I focus on two models of anti-discrimination enforcement that have been or are being applied in British Columbia. British Columbia provides an interesting case study because differing visions of equality are, for reasons of political expediency, effected through change to the structures and powers of the institutions that are charged with combating discrimination. Examining British Columbia legislation therefore allows me to explore the relationship of the structure and powers of anti-discrimination agencies to the achievement of equality. The chapter begins with a discussion of the politics of anti-discrimination reform in British Columbia, at least to the extent that those politics are expressed through reform of anti-discrimination legislation. Then, using the barriers to equality discussed in Chapter IV, I consider the strengths and limitations of the two most recent enforcement models in British Columbia. 8 The conclusion that emerges from the analysis in Chapters IV and V is ambivalent. Canadian courts and tribunals have rejected a purely formal theory of equality. They have interpreted anti-discrimination statutes as having broad, sometimes even radically egalitarian, purposes. So interpreted, the statues incorporate current progressive conceptions of equality. Moreover, such statutes have the ability to remedy a wide range of discriminatory barriers. On the other hand, there are limitations inherent to these statutes, limitations that become more apparent the further removed the equality goals are from formal inequality. In Chapters IV and V, I identify those limitations. This thesis focuses on anti-discrimination statutes. Such statutes are not the only legislative tools designed to address inequality. The Charter of Rights and Freedoms, particularly section 15, also addresses equality. Although this thesis is not about the Charter, I do occasionally refer to Charter cases. Interpretations and applications of section 15 of the Charter often guide the interpretation or application of anti-discrimination statutes (and vice versa). When I refer to Charter cases, it is to illustrate particular points related to anti-discrimination statutes, not to advance a Charter analysis. Similarly, occasionally I discuss other legislative tools, such as employment equity or licensing laws that seek to achieve some of the same purposes as anti-discrimination statutes. Again, my aim is to discuss such laws to advance my analysis of anti-discrimination laws. A comparative analysis of the various legislative initiatives to combat the inequalities associated with disability would be interesting and useful. But it is beyond the scope of this thesis. 3 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c l 1 [Charter]. 9 2. A Note on Terminology (a) "Human Rights" or Anti-Discrimination" In Canada, since the 1960s, public policy aimed at combating discriminatory practices has been incorporated in statutes described as human rights legislation and entitled "Human Rights Codes" or "Human Rights Acts". They are administered by Human Rights Commissions and/or Human Rights Tribunals. Most of these statutes deal exclusively with discrimination; they do not address other human rights issues, such as legal rights or social and cultural rights. In the context of domestic law, "human rights statutes" and "anti-discrimination statutes" are used interchangeably. Although "human rights" is the more common usage, for the purposes of this thesis, I prefer the term "anti-discrimination". The latter more precisely describes the focus of this thesis and may avoid confusion, particularly for readers more familiar with the international or constitutional context where "human rights" has a more expansive meaning. Occasionally, I refer to "human rights" legislation (such as in the opening paragraphs of this introduction); when I do, I am using it in the narrow sense that it is used domestically. (b) "Disability" Beginning in Chapter III, I focus on disability as an equality issue. But what does "disability" mean? In its common usage, the term may refer either to a physical condition or to the limiting effect of the condition. Theorists, policy-makers and activists have struggled to give disability a more precise meaning. That struggle often reflects a more fundamental debate about the nature and causes of disability. That debate is discussed in Chapter III and I need not summarize it here. Nevertheless, that debate illuminates the importance of the 10 language we use to describe disability. Our perspective on the nature and causes of disability affects the language we use to describe it. Much has been written on the meaning of "disability". It is not my intention to review that literature.4 Nevertheless, it is important for me to explain what I mean when I say "disability". A more precise definition will help to avoid confusion; it will also reveal the perspective that I bring to this analysis. In an effort to standardize the language around disability, the World Health Organization developed a framework for describing disability.5 It distinguishes "impairments", "disabilities" and "handicaps". An "impairment" is a physical anomaly; a "disability" is a limitation in the ability to perform normal activities because of the impairment; and a "handicap" is a disadvantage that arises from the social reception of the disability or impairment. This tripartite conceptualization of disablement clarifies the mechanics of disability. For my purposes, however, it is too precise. It requires subtle distinctions that may be more distracting than helpful. Michael Oliver, a sociologist and a pioneer in the area of disability studies, offers the following classification: Impairment lacking part of or all of a limb, or having a defective limb, organism or mechanism of the body; Disability the disadvantage or restriction of activity caused by a contemporary social organisation which takes no or little account of people who have 4 A thorough analysis of the meaning of "disability" can be found in Jerome E. Bickenbach, Physical Disability and Social Policy (University of Toronto Press: Toronto, 1993) at 20-61; see also Michael Oliver, The Politics of Disablement (The MacMillan Press: London, 1990) at 1-11. 5 International Classification of Impairments, Disabilities and Handicaps: A Manual of Classification Relating to the Consequences of Diseases (Geneva: World Health Organization, 1980). For an analysis of this manual, see Bickenbach, Ibid. The WHO has recently developed a new approach towards the classification of disability, one that focuses on health and functioning. The intent is to create "an international, scientific tool for the paradigm shift from the purely medical model to an integrated biopsychosocial model of human functioning and disability.": World Health Organization, Towards a Common Language for Functioning, Disability and Health: ICF The International Classification of Functioning, Disability and Health (Geneva: World Health Organization, 2002) at 20. 11 physical impairments and thus excludes them from the mainstream of social activities.6 This classification reflects Oliver's perspective of disability as the consequence of oppression. There is no recognition of any limiting effects of the impairment that are not socially constructed. For my purposes, it is not necessary to incorporate such a clearly defined perspective in my definition of disability. It is, however, necessary for me to be clear about the distinction between a physical condition and its effects. I wil l therefore use the term "impairment" as it is used in both the classifications discussed above to describe a physical condition or anomaly. I will use "disability" to describe the limitations that are created by the impairment. I accept that those limitations may be socially constructed. I do not find it helpful, in the context of my analysis, either to use a definition of disability that excludes the possibility of limitations that are not socially constructed or to use a separate term (i.e. "handicap") that includes only those that are socially constructed. Generally, the focus of the paper is on physical rather than mental disability. M y discussion wil l not be related exclusively to physical disability, and I will occasionally use examples that relate to mental disabilities. However, there may be particular issues on which the interests of people with mental disabilities diverge from people with physical disabilities. I have not attempted to identify such issues, or to analyze them from both perspectives. M y perspective is through the lens of physical disability. 6 Oliver, supra note 4 at 11. This definition was initially developed by the Union of the Physically Impaired against Segregation. 12 (c) "Disabled Person" or "Person with a Disability" Defining "disability" raises difficult issues of theory and policy. Describing people who have disabilities raises different challenges. How we describe people can have a profound effect on the lives they live. Language can stigmatize, belittle or demean. Sometimes it is downright offensive to those who experience it. In North America, activists generally describe themselves as "people with disabilities". This focuses attention on them first and foremost as people. They have a disability, but the disability does not encompass them. British activists prefer "disabled people". Oliver explains that the liberal and humanist view that the disability is a mere appendage to the person "flies in the face of reality as it is experienced by disabled people themselves who argue that far from being an appendage, disability is an essential part of the self. .. .[Djisabled people are demanding acceptance as they are, as disabled people."7 Oliver's position has resonance for me. Much of the power of the message of the disability rights movement, which is described in Chapter III, comes from disabled people's strength as a collective. Despite the vast range of disabling conditions, there is a shared experience of disability. Their disability does not define them, but it is essential to their lived experience. Nevertheless, in this paper, I will generally refer to "people with disabilities" rather than "disabled people". I do so out of deference to those North American activists who prefer the former term. Nevertheless, I will occasionally use the term "disabled people". I do so primarily for reasons of style (though it may also reflect my sympathy for Oliver's position); efforts to read any nuance into my occasional use of the term will be futile. 7 Oliver, Ibid, at xi i i . 13 Referring to people with disabilities as "the disabled" fell out of favour among activists in the mid-1980s. Coalitions of the disabled became coalitions of people with disabilities. The change reflected the same reasoning that gives preference to "people with disabilities" over "disabled people": the focus should be on the person rather than the disability. The reasoning has more force in this context because "the disabled" leaves out the person altogether. For me, however, something was lost in the transition. "The disabled" suggests a unified collective, a social force. "People with disabilities" connotes a diverse group of individuals who happen to share one characteristic. It does not evoke the power associated with a social movement. If I refer to "the disabled", therefore, it is to evoke that collective force; it is to identify people with disabilities not merely as a group with a shared characteristic but as a collective with a shared goal. 3. About the Author In stubbornly clinging to "the disabled" as a term with some descriptive value, I may be fighting a rear-guard action in a battle I lost long ago. In the mid-1980s, I was on the Board of the B C Coalition of the Disabled when it changed its name to the BC Coalition of People with Disabilities. During debate on the name change, I took a similar position to the one I described above. Apparently my argument was not persuasive. With the aid of hindsight, I recognize that some, perhaps many, members of the coalition did not see themselves as part of a social movement and that the name change might have reflected that reality. 8 It may also reflect the tendency of each generation of activists to respond to the stigma associated with disability by advocating for a new, and less stigmatizing, term. Hence "cripples" was replaced by "the handicapped", which was replaced by "the disabled", and then "people with disabilities". 14 There are many points throughout this paper where the story it tells touches my life story both personally and professionally. I have a disability. In 1969, as a result of a diving accident, I crushed two vertebrae in my neck, leaving me with limited use of my legs and hands. Since then I have relied on crutches or a wheelchair for mobility. At the time of the accident, anti-discrimination statutes did not prohibit discrimination on the basis of disability. In 1979,1 became involved with the BC Coalition of the Disabled (as it was then called) and became part of the growing disability rights movement. I actively lobbied for inclusion of disability as a prohibited ground of discrimination in human rights statutes. And as a representative of the disability community on the Solidarity Coalition steering committee, I fought against the dismantling of human rights institutions by the BC Social Credit government in 1983. Professionally, I was employed as an investigator with the Canadian Human Rights Commission throughout the early 1980s. I was appointed to the BC Council of Human Rights in 1991, then to the BC Human Rights Tribunal in 1997. I participated in the evolution of human rights legislation which is described in Chapter I. I was part of the disability rights movement described in Chapter III. I have worked as an investigator and adjudicator applying the powers described in Chapters IV and V. And I have observed at close range the boisterous history of British Columbia's anti-discrimination legislation, which is described in Chapter V. Although the story that this thesis tells has touched my life in many ways, it is not the story of my life. It is not intended to be autobiographical. Nor, unless expressly indicated or when I am describing processes with which I am very familiar (such as those of the BC Council of Human Rights), do I consciously draw on my own experience when analyzing the issues 15 addressed in this paper. Nevertheless, it is likely that my vision of equality and the role of anti-discrimination legislation in removing barriers to equality, especially for people with disabilities, has been shaped by my personal experience. M y hope is that that vision does not distort my analysis in the pages that follow; but rather that it focuses the analysis on issues that have not been addressed or have been addressed differently by other scholars. 16 Chapter I: Human Rights Legislation Following the [second world] war, governments ventured into the area of human rights only hesitantly and when pushed by an aroused public opinion following some dramatic incident of discrimination. Amendments to initial pieces of legislation most often were designed to go only as far as was necessary to cope with specific discriminatory practices that labour, religious or other groups had documented and publicized. • Meanwhile, as pressure groups demonstrated inadequacies in the enforcement of the laws, administrative structures were patched up and expanded bit by bit.1 1. Introduction On July 11, 1936, Fred Christie, a Black man, entered the York Tavern, placed 50 cents on the bar and ordered three steins of beer, one each for himself and the two friends who accompanied him. The waiter refused to serve him, stating that he was instructed not to serve "colored persons". Mr. Christie sued the tavern. Approximately three years later, the Supreme Court of Canada dismissed his suit. It held that the tavern was within its rights to decline service to Mr. Christie. The Court based its decision on the following proposition: ... [W]e ought to start from the proposition that the general principle of the law of Quebec is that of complete freedom of commerce. Any merchant is free to deal as he may choose with any individual member of the public. It is not a question of motives or reasons for deciding to deal or not to deal; he is free to do either. The only restriction to this general principle would be the existence of a specific law, or, in the carrying out of the principle, the adoption of a rule contrary to good morals or public order.3 ' Daniel G. Hill, Human Rights in Canada: A Focus on Racism (Canada Labour Congress, 1977) at 18. 2 Christie v. York Corp., [1940] S.C.R. 139. 3 Ibid, at 142. 17 In short, the Court concluded that freedom of commerce - or perhaps more accurately, freedom of a merchant to deal - trumps the freedom of a customer to be treated without discrimination. At the time, the decision does not appear to have engendered any great controversy. It was reported on the inside pages of the local newspapers without comment.4 The muted response to a decision which today would provoke outrage reflects the social and judicial context in which the decision was made. At the time, discrimination was common and widespread in Canadian society. Neither the legislators nor the judiciary demonstrated an interest in prohibiting such conduct. However, following World War II, many groups demanded laws to prohibit discrimination. And the legislators responded by introducing anti-discrimination statutes. Initially the laws were narrow in scope, and provided little support for those who sought to enforce them. Since then, in response to public pressure, legislators have incrementally increased the scope of the legislation and have introduced mechanisms intended to enhance the effectiveness of the legislation. The first stage of the evolution of anti-discrimination legislation was the unregulated pre-war context in which Christie was decided. In the second stage, "fair practice" statutes of limited scope were introduced. That was followed in the 1960s, 1970s and 1980s by the creation of statutory human rights agencies with the authority to administer and enforce consolidated human rights statutes, and expansion of the scope of the legislation. The fourth stage reflects 4 James R. St. G. Walker, "Race, " Rights and the Law in the Supreme Court of Canada (Toronto: Osgoode Society, 1997) at 389, n. 208. 18 growing concern about the effectiveness of anti-discrimination enforcement, and is marked by reviews of the legislation in many jurisdictions and the establishment of new forms of statutory agencies to enforce it. The legislation was not introduced at the same time or in the same form in all Canadian jurisdictions; however, the evolutionary stages have been similar. M y review will not identify every statute from every Canadian jurisdiction. Rather, I will discuss representative legislation from the various stages.5 In subsequent chapters, I will consider the effectiveness of current anti-discrimination legislation, particularly in achieving equality for people with disability. 2. Discr iminat ion before W o r l d W a r II The discrimination experienced by Fred Christie was not anomalous. After the abolition of slavery, Canadian legislation did not deny Blacks any of the rights granted to the white majority. In this respect, Blacks had an advantage over other racial minorities. In the first half of the century, discriminatory legislation was not unusual. For example, laws restricted immigration from Asian countries, denied Asians and Native people the right to vote, and restricted and segregated land ownership and employment and business opportunities.6 The National Japanese Canadian Citizen's Association presented a submission to the Special Committee on Human Rights and Fundamental Freedoms of the Senate of Canada (the "Senate Special Committee"), which met in 1950 to consider whether Canada should enact a B i l l of Rights. That submission appended a long list of laws and regulations that discriminated against Japanese Canadians directly or indirectly. The discrimination included, 5 For a more exhaustive review, see W.S. Tarnopolsky & W.F. Pentney, Discrimination and the Law (Scarborough, Ont.: Carswell, 2001) at Chapter 1. 6 Ibid, at 1-3 to 1-5. 19 for example, prohibitions on voting, working underground, practicing pharmacy or law, or being elected mayor or alderman.7 Although Blacks did not face overtly discriminatory legislation, Jim Crow rules that segregated Blacks and whites were widespread. James Calbert Best, the associate editor of The Clarion newspaper, a bi-weekly Black newspaper in Nova Scotia, wrote: We do have many of the privileges which are denied our southern brothers, but we often wonder i f the kind of segregation we receive here is not more cruel in the very subtlety of its nature. [...] True, we are not forced into separate parts of public conveyances, nor are we forced to drink from separate faucets or use separate washrooms, but we are often refused meals in restaurants and beds in hotels, with no good reason. Nowhere do we encounter signs that read "No Colored" or the more diplomatic little paste boards which say "Select Clientele", but at times it might be better. At least much consequent embarrassment might be saved for all concerned.8 Examples of the colour-bar abound: the military was segregated; churches tended to be segregated, only sometimes by choice; orphanages could segregate by race; Blacks were denied burial in segregated cemeteries; and various hotels, restaurants and theatres were closed to Blacks. 9 Separate seating for Blacks in Canadian theatres was common. Canadian hospitals typically did not accept African-Canadians as nurses and, in several cities, Black doctors were denied hospital privileges. At least one hospital in Edmonton would not receive Black patients in the 1920s and 1930s.10 7 Senate, Special Committee on Human Rights and Fundamental Freedoms, Proceedings, (1950) at 278-79. 8 Cited in Constance Backhouse, Color-Coded: A Legal History of Racism in Canada 1900-1950 (Toronto: The Osgoode Society and University of Toronto Press, 1999) at 269. 9 Ibid, at 251. 1 0 Walker, supra note 4 at 131-32 20 Overt discrimination and segregation was not limited to Blacks. In housing, entire suburbs were closed to Jews. "Gentiles Only" signs were common. Resorts displayed signs that said, "No Jews or Dogs Allowed". The right of landlords, employers and resort owners to discriminate on the basis of race or religion was taken for granted.11 Most of the groups that made submissions to the Senate Special Committee in 1950 referred to such discriminatory practices. For example, the Canadian Jewish Congress discussed discrimination by employers and restrictive covenants on property. They also noted racial restrictions in hotels and resorts.12 The submission of the Canadian Youth Groups described a study in which it was found that, when answering job ads, an applicant with the name of "Greenberg" was far less likely to make an appointment for an interview than an applicant with the same qualifications named "Grimes". Similar results were obtained when resorts were tested.13 Political scientists Brian Howe and David Johnson have considered the evolution of human rights policy in Canada.14 They state that, prior to World War II, Canada lacked an equality-rights consciousness; consequently, discrimination was widely practiced and human rights legislation was resisted. The prevailing ethic was a belief in social laissez-faire: "While prejudice and discrimination might be morally wrong or socially undesirable, human rights 1 1 Lita-Rose Betcherman, The Swastika and the Maple Leaf: Fascist Movements in Canada in the Thirties (Toronto: Fitzhenry & Whiteside, 1975) at 51-52 12 Proceedings, supra note 7 at 74-75. 13 Ibid, at 295-96. 1 4 R. Brian Howe & David Johnson, Restraining Equality: Human Rights Commissions in Canada (Toronto: University of Toronto Press, 2000). 21 legislation or legal action against discrimination would do more harm than good." 1 5 The common view was that discrimination was to be corrected through moral suasion, not by law. This approach was favoured even among minority leaders and ethnocultural organizations, who feared that pressing legislatures for anti-discrimination laws might lead to a backlash.16 Thus, in Christie, the Court was reflecting a view that was prevalent in contemporary Canadian society. Christie was not the first time that the Supreme Court of Canada had been required to address the issue of discrimination. In previous cases, the Court had demonstrated a similar reluctance to support egalitarian values. For example, in Quong-Wing v. The King,11 the Court considered Saskatchewan legislation that prohibited any person from employing a white woman or girl in an establishment owned by a "Chinaman". In dismissing Mr. Quong-Wing's appeal of his conviction under the statute, the majority of the Court characterized the object of the Act as the protection of white women and girls, which it found to be intra vires the province. Idlington J. , in dissent, was the only judge to recognize that, while purportedly aimed at protecting white women, the purpose of the Act was "to curtail or restrict the rights of Chinamen".1 8 The Court showed a similar attitude when addressing other equality issues. In Re Meaning of Word "Persons " in Section 24 of the B.N. A. Act (the Edwards case),19 the Court was required to determine whether "persons" in the British North America Act included women. The 15 Ibid, at 4. 16 Ibid, at 5-6. 1 7 (1914), 49S.C.R. 440. 18 Ibid., at 451. 1 9 [1928] S.C.R. 276. 22 Court again avoided dealing directly with issues of equality. Instead, it focused its inquiry on whether, in 1867, the legislators had intended "qualified persons" to include women, and found that it had not. The Judicial Committee of the Privy Council disagreed and was prepared to advance the common law so as to reflect contemporary values. Lord Sankey stated: .. .[Tjheir Lordships do not think it right to apply rigidly to Canada of today the decisions and reasons therefor which commended themselves, probably rightly, to those who had to apply the law in different circumstances, in different centuries, to countries in different stages of development.20 The Supreme Court's reluctance to address egalitarian issues in those cases may be explained by society's absence of an equality-rights consciousness. However, that consciousness changed rapidly after World War II. Howe and Johnson suggest that the war itself was the main stimulus for the change: the nature of the struggle against fascism and the extent of the Holocaust affected the way Canadians thought and was a catalyst for change. The war also led to events that influenced the growing human rights consciousness in Canada, including the United Nations' Universal Declaration of Human Rights21 and anti-discrimination * * 22 legislation in New York. Howe and Johnson identified a number of other factors that influenced the growth of a Canadian human rights consciousness. These included the civil rights movement, and later, the women's movement; the changing demographics of Canadian society; and the ease with which equality rights fit with Canadian liberalism. z o [1930] A.C. 124 at 134-35. 2 1 GA Res. 217 (III), UN GAOR, 3d. Sess., Supp. No. 13, UN Doc. A/810 (1948). 2 2 Howe & Johnson, supra note 14 at 6. 23 Ibid, at 27-29. 23 Nevertheless, the Supreme Court of Canada appears to have resisted the tide of equality-rights consciousness. In 1952, the Court issued its decision in Noble and Wolfe v. Alley,24 which concerned a restrictive covenant prohibiting the sale of land to any person of the "Jewish, Hebrew, Semitic, Negro or coloured race or blood". In an earlier case, Re Drummond Wren, the Ontario High Court had considered a restrictive covenant which prohibited the resale of land to "Jews, or to persons of objectionable nationality". Mr. Justice Mackay declared that the rule was invalid because it was contrary to public policy, void for uncertainty and was a restraint upon alienation. In reaching his conclusion he relied on international instruments, including the Atlantic Charter26 and the United Nations Charter21 as well as some Ontario Acts that indicated a policy of non-discrimination. In Noble and Wolfe, neither the trial nor appellate courts agreed with the decision in Re Drummond Wren that the covenant was void on the grounds of public policy. At the Supreme Court, the covenant was set aside, but not for reasons of public policy: five of the seven judges ruled that the covenant did not relate to the user of the land and, therefore, could not run with the land; four held that it was void for uncertainty. Although, in the result, the covenant was set aside, the decision was not a ringing endorsement of equality rights as a value fundamental to Canadian society. The judiciary's reluctance to address discrimination contributed to the pressure on legislatures to take steps to protect equality rights. For example, after the Nova Scotia Court [1951JS.C.R. 64. [1945] O.R. 778. [1942] Can. T.S. No. 1. [1945] Can. T.S. No. 7. 24 of Appeal denied the appeal of a conviction of a woman who had done nothing more than sit in an area of a theatre reserved for white patrons, James Calbert Best wrote in The Clarion: People have come to realize that the merchant, the restaurant operator, the theatre manager all have a duty, and the mere fact that such enterprises are privately owned is no longer an excuse for discrimination on purely racial grounds. [...] Here in Nova Scotia, we see the need of such legislation every day.2 9 Tarnopolsky states: It is no wonder, then, that the legislatures, with no aid from the judiciary, had to move into the field and start to enact anti-discrimination legislation, the administration and application of which has been largely taken out of the courts.30 By 1950, when the Senate Special Committee met to hear submissions on a possible B i l l of Rights for Canada, this equality-rights consciousness was evident in many of the presentations. F.R. Scott, a constitutional lawyer at McGi l l , was the first speaker. He opened with these remarks: No subject, in my opinion is more worthy the attention of the legislatures of democratic states today than the one referred to your consideration, for it is by enlarging human rights and fundamental freedoms that we strengthen the In 1946, Ms. Desmond was dragged out of a theatre in Nova Scotia, arrested and jailed because she insisted in sitting in an area of the theatre reserved for whites. She was taken before a magistrate to answer a charge that she had violated the Theatres, Cinematographs and Amusements Act by failing to pay an amusement tax. The tax was included in the ticket price. The downstairs ticket cost 40 cents, rather than 30 upstairs, and included an additional one cent tax. Ms. Desmond was therefore, in effect, charged with failing to remit the one cent tax. She was not represented by counsel and no crown attorney was present; the theatre manager was listed as the prosecutor. The record indicates that Ms Desmond testified that she had offered to pay but the theatre had refused. She was, nevertheless, convicted and fined $20. She applied to the Supreme Court for a writ of certiorari to quash the magistrate's decision. The application was denied and an appeal to the full bench of the Nova Scotia Supreme Court failed.: R. v. Desmond (1947), 20, M.P.R. 297, aff d [1947] 4 D.L.R. 81. For a thorough discussion of the facts in the Desmond case, and its historical context, see Backhouse, supra note 8 at 226-271. 2 9 Cited in Backhouse, ibid, at 268-69. 3 0 W. S. Tarnopolsky, "The Supreme Court and Civil Liberties" (1976) 14 Alberta L.Rev. 58 at 76. 25 moral basis of our social order, and give to all our people a stake in democracy which is the surest defence against anti-democratic creeds.31 3. Introduction of Anti-Discrimination Laws There was some pressure for anti-discrimination legislation before the war. In 1933, a Conservative backbencher in Ontario introduced a bill aimed at prohibiting advertisements and notices that discriminated on the basis of race and religion.3 2 And the Co-operative Commonwealth Federation (CCF) sought a Bi l l of Rights in 193 5. 3 3 However, the first modern anti-discrimination legislation in Canada was passed in Ontario in 1944.34 The Racial Discrimination Act,35 which was introduced by the Conservative government, prohibited the publication or display of signs, symbols, or other representations indicating racial or religious discrimination or an intention to discriminate. The legislation passed with relatively little opposition. The Grand Orange Lodge of Ontario sent a "strongly worded" telegram to the Government protesting the bill. It described the measure as an "insult to the intelligence of Ontario citizens," and asserted that the bill would prevent any Protestant paper from lawfully discussing or propounding its own faith.3 6 Initially, the Globe and Mail also opposed the legislation. In an editorial it wrote: Civi l liberties, individual rights, all the freedoms are based on toleration. But toleration is not to be advanced by intolerant laws. On the face of it, the ... 31 Proceedings, supra note 7 at 15. 3 2 Betcherman, supra note 11 at 51. 3 3 Howe & Johnson, supra note 14 at 169, n. 1. 3 4 Tarnopolsky & Pentney, supra note 5 at 2-3, trace the first anti-discrimination legislation in Canada to legislation abolishing slavery in Upper Canada in 1793: "An Act to prevent the further introduction of Slaves and to limit the term of contracts for servitude within this province", 1793 S.U.C. (2nd Sess.), c. 7. Prior to 1944, discrimination was addressed in some statutory provisions: the Insurance Act, S.O. 1932, c.24, s.4 prohibited unfair discrimination between risks "because of the race or religion of the insured"; the Unemployment Relief Act, S.B.C. 1931, c.65 validated a clause of a federal-provincial agreement that prohibited discrimination in employment in relief projects on the basis of political affdiation, and in 1932 the Unemployment Relief Act, S.B.C. 1932, c.58 extended that prohibition to include "race or religious views". 3 5 S.O. 1944, c. 51, s. 1. 3 6 "Orange Lodge Scents 'Insult' in Anti-Discrimination Bill" Globe & Mail March 9, 1944. 26 [Racial Discrimination] B i l l would imprison, not free, the minorities. It is in IT essence a violation of the rights it seeks to guarantee to them. On second reading, the government announced that, in committee, it would introduce an amendment stating that the Act "shall not be deemed to interfere with the free expression of opinions upon any subject...." The amendment satisfied the Globe and Mail, which withdrew its opposition to the bill. In the house, only one member opposed the legislation. His opposition was based on concerns that the legislation would prevent members of the legislature from speaking at public meetings, or ministers from printing their sermons, and it would prevent publications of papers such as the Orange Sentinel, the Protestant Action and the Catholic Register,40 The Ontario legislation was very limited in scope. It prohibited only the outward manifestation of a discriminatory intent; it did not prohibit discriminatory conduct. Premier Drew stated that the Act was intended to stop the use of offensive signs, notices and symbols.41 He made it clear that he did not intend to introduce legislation dealing with terms of employment or the obligation of hotel keepers. He stated: It would not only prove ineffective, but it would actually cause confusion and dissatisfaction to the very people who claim protection i f any attempt were made to pass laws which could not be enforced. That we will not do in this or in any other case.42 3 7 "Racial Bill Not the Cure" Globe & Mail March 10, 1944. 3 8 Ontario, Legislative Assembly, Journal of the Legislative Assembly, (March 10, 1944) at 757 [Journal]. 3 9 "Racial Bill Safeguarded" Globe & Mail March 13, 1944. 40 Journal, supra note 38 at 765-67. 41 Ibid, at 758. 4 2 Ibid, at 759. 27 The first comprehensive anti-discrimination legislation in Canada was the Saskatchewan Bill of Rights Act,43 which was enacted in 1947. The Act protected political civil liberties, including the freedom of speech, press, assembly, religion, and association, in addition to prohibiting discrimination with respect to accommodation, employment, occupation, land transactions, education, businesses and enterprises. As with the Ontario Racial Discrimination Act, the Saskatchewan Bill of Rights was largely unopposed. The Regina Leader-Post, which was no friend to the governing CCF party, questioned the need for the legislation but did not oppose it. 4 4 In the Legislature the bill was unopposed; however, the Attorney-General, J. W. Corman, complained that the opposition members belittled the bill by giving it only half-hearted approval.45 The Racial Discrimination Act and the Saskatchewan Bill of Rights were quasi-criminal legislation. Tarnopolsky notes that such legislation was subject to a number of weaknesses: the victims were reluctant to initiate criminal action; it was difficult to prove the offence beyond a reasonable doubt; it was extremely difficult to prove that the person had not been denied access for a non-discriminatory reason; and judges were often reluctant to convict.4 6 4. Fair Practice Statutes As a result of the weaknesses of the earlier statutes, legislators enacted fair employment and fair accommodation practices Acts. These Acts, which were modeled on legislation passed 4 3 S.S. 1947, c. 35. 4 4 "Fundamental Freedoms" The Leader-Post March 19, 1947. 4 5 "Rights bill smeared Corman tells house" The Leader-Post March 27, 1947. 4 6 Walter S. Tarnopolsky, "The Iron Hand in the Velvet Glove: Administration and Enforcement of Human Rights Legislation in Canada" (1968) 46 Can. Bar Rev. 565 at 568-69 ["The Iron Hand"]. 28 in the State in New York in 1945, provided for the investigation and conciliation of complaints and, i f the conciliation was unsuccessful, for the appointment of commissions or boards of inquiry to hear evidence and make recommendations. A person who failed to comply with the Act or an order made under the Act was guilty of a summary conviction offence. The Ontario Conservative government enacted the first Fair Employment Practices Act4S in 1951. The Act prohibited any person from discriminating against an employee, or potential employee, because of race, creed, colour, nationality, ancestry or place of origin. Other provinces passed similar legislation.49 Ontario also led the way with its Fair Accommodation Practices Act50 in 1954. The Act prohibited any person from denying accommodation, services or facilities to which the public is customarily admitted because of a person's race, creed, colour, nationality, ancestry or place of origin, and it incorporated the provisions of the 1944 Racial Discrimination Act. In British Columbia, the Fair Employment Practices Act51 was introduced in 1956. The Act was typical of such legislation. It provided that: No employer shall refuse to employ or refuse to continue to employ any person in regard to employment or any term or condition of employment because of his race, religion, colour, nationality, ancestry, or place of origin. 5 2 4' Law Against Discrimination, New York Laws 1945, c. 118. 4 8S.O. 1951, c. 24. 4 9 S.M. 1953 (2nd Sess.), c. 18; S.N.S. 1955, c. 5; S.N.B. 1956, c. 9; S.B.C. 1956, c. 16; S.S. 1956, c. 69. 5 0 S.O. 1954, c. 28. Other provinces enacted similar legislation: S.S. 1956, c. 68; S.N.B. 1959, c. 6; S.N.S. 1959, c. 4; S.M. 1960, c. 14; S.B.C. 1961, c. 50. 5 1 S.B.C. 1956, c. 16. 52 Ibid. s. 3. 29 The statute also prohibited discrimination by trade unions (s. 4) and in employment advertising (s. 5). The enforcement procedure required a written complaint. Upon receipt of the complaint, a government official (the "Director") could designate an officer of the Department of Labour to investigate the complaint and "endeavour to effect a settlement of the matter". The legislation did not grant any powers to the investigator. If a settlement could not be achieved, the Director had discretion to refer the matter to the Board of Industrial Relations for a hearing.54 If the Board concluded that the evidence supported the complaint, it was required to make a recommendation to the Director, which could "include reinstatement with or without compensation for loss of earnings and other benefits."55 The Minister of Labour had discretion to issue an order requiring that the recommendations be carried out. Failure to comply with the Act or an order was an offence subject, on summary conviction, to a fine of up to $100. In 1961, the British Columbia government introduced the Public Accommodation Practices Act.56 It provided that: No person shall deny to any person or class of persons the accommodation, services, or facilities available to the public in any place to which the public is customarily admitted because of the race, religion, colour, nationality, ancestry, or place of origin of such persons or class of persons.57 Ibid. s. 6. Ibid. s. 7. Ibid. S.B.C. 1961, c. 50. Ibid. s. 3. 30 The Act also prohibited the publication or display of signs that indicated discrimination or an intention to discriminate.58 The Act was enforced in the same manner as the Fair Employment Practices Act. During this period a number of provinces also introduced legislation prohibiting discrimination in employment with respect to sex 5 9 and age.60 Legislation was also enacted to prohibit restrictive covenants on the sale of property.61 There were very few prosecutions under the fair practice legislation. In 1963, Bowker could find only three reported cases, all from Ontario, under the Fair Employment Practices statutes, and none under the Fair Accommodation Practices statutes. These statutes were an improvement over the quasi-criminal statutes: they replaced the laying of an information leading to prosecution with the filing of a complaint leading to an administrative proceeding. However, Tarnopolsky observed: [T]his legislation continues to place the whole emphasis of promoting human rights legislation upon the individual who has suffered the most, and who is often in the least advantageous position to help himself. It does place the administrative machinery of the state at the disposal of the victim of discrimination, but it approaches the whole problem as i f it were solely his 58 Ibid. s. 4. This prohibition has been included in subsequent legislation. However, the section was amended in 1993 amidst much controversy: S.B.C. 1993, c. 27, s. 2, amending S.B.C. 1984, c. 22, s. 2. The thrust of the controversy was around repeal of a free speech exemption similar to the one that had been inserted to Ontario legislation to quell controversy in 1944 as discussed above at note 38 and accompanying text. 5 9 See e.g. S.O. 1951, c. 26; S.B.C. 1953 (2nd Sess.), c. 6. 6 0 See e.g. S.B.C. 1964, c. 19; S.O. 1966, c. 3. 6 1 The Conveyancing and Law of Property Amendment Act, S.O. 1950, c. 11 was passed in March 1950, shortly after the Ontario Court of Appeal had upheld a decision which allowed a restrictive covenant that prohibited the sale of a property to "any person of the Jewish, Hebrew, Semitic, Negro or coloured race": Noble and Wolf v. Alley, [1948] 4 D.L.R. 123 (Ont. H.C.J.), aff d [1949] 4 D.L.R. 375 (Ont. C.A.), rev'd [1951] 1 S.C.R. 64. 6 2 D. W. Bowker, "Anti-Discrimination Legislation" (1963) Canadian Bar Papers 28 at 35-36. 31 problem and his responsibility. The result is that very few complaints are made and very little enforcement is achieved.63 These concerns led to pressure on governments to create more effective mechanisms to address discriminatory practices. 5. Consol idated Statutes The next phase of legislative development involved the creation of human rights commissions and the consolidation of anti-discrimination statutes into comprehensive legislation. Ontario again led the way when, in 1962, it enacted the Ontario Human Rights Code.64 The Code consolidated the anti-discrimination statutes and was administered by the Ontario Human Rights Commission,6 5 which was responsible for receiving, investigating and conciliating complaints, and delivering public education programs. British Columbia introduced a Human Rights Act66 in 1969. The legislation consolidated the previous legislation with some modifications. Sex and age (between 45 and 65) were included in the provisions on employment discrimination, but not in other prohibited areas. The legislation also added a bona fide occupational qualification defence on the grounds of 67 sex, and, in the case of age, it added a defence based on bona fide retirement or pension Tarnopolsky, "The Iron Hand", supra note 46 at 570-71 6 4 S.O. 1961-62, c. 93. 6 5 The Ontario Human Rights Commission was established a year earlier (S.O. 1960-61, c. 63) replacing the Anti-Discrimination Commission which had been established in 1958 (S.O. 1958, c. 70). This appears to be the point at which "human rights" replaced "anti-discrimination" when describing the legislation. 6 6 S.B.C. 1969, c. 10. 67 Ibid. s. 5. 32 plans, or bona fide insurance plans. On other grounds, the Act did not include any justification defence to discriminatory practices except for employment advertising. In addition to consolidating and expanding prior anti-discrimination provisions, the Act created a Human Rights Commission, with responsibility for enforcing the statute. As with the earlier legislation, the process started with a complaint. The Commission's Director could appoint an officer to inquire into and attempt to settle the matter. The Commission was given broad, delegable powers to compel production of documents and other information. After investigation, i f a complaint could not be settled, the matter was referred to the Commission. If the complaint was, in the Commission's view, without merit, it could dismiss the complaint. If the Commission concluded that the respondent had contravened the Act it was required to order that the respondent cease the contravention,69 and could order reinstatement and lost wages.70 In addition, the Act provided that the Commission's Director was required to promote equality based on the enumerated grounds, promote an understanding of and compliance with the Act, and develop educational programs aimed at eliminating discriminatory practices. Although this statute was an improvement over previous legislation, its enforcement mechanism was weak; "There was almost no staff, and very few cases were heard."71 68 Ibid. s. 7(2). It appears that employers could advertise a preference based on a proscribed ground if the preference was based on a bona fide occupational requirement ("BFOR"), but if they exercised that preference in hiring, they could not rely on a BFOR defence. 69 Ibid. s. 14(6)(a). 10 Ibid. s. 14(6)(c). 7 1 William W. Black, BC Human Rights Review - Report on Human Rights in British Columbia (Vancouver: Ministry Responsible for Multiculruralism and Human Rights, 1994) at 3 [Black Report]. 33 This legislation was typical of the anti-discrimination legislation that had been enacted across the country. For Tarnopolsky, this consolidated legislation, enforced by an independent commission insured "community vindication of the person discriminated against."72 The presence of human rights commissions appears to have facilitated complaints of discrimination and the number of such complaints increased dramatically. Between the 1960s and 1990s a considerable expansion of the scope of human rights legislation took place. The prohibited grounds of discrimination were expanded to include additional grounds such as disability, sexual orientation, political belief and criminal conviction. The areas of coverage also expanded to include contracts, employment agencies, sexual harassment, and hate literature. In addition, commissions were given broader and more proactive powers. They were given the power to investigate systemic discrimination and order remedies. They could approve or initiate special programs to address systemic or indirect discrimination, and some could initiate complaints. Boards of inquiry were given broader remedial powers, including the power to order affirmative action programs. Some commissions were given power to address complaints of equal pay for work of equal value.7 4 Although there was variation across the country, a similar course of expansion occurred in all jurisdictions - except in British Columbia. In 1973, the B.C. New Democrat Party (NDP) was elected to govern. It introduced a human rights code that provided for mandatory investigation of all complaints and prohibited discrimination in employment without "reasonable cause". The "reasonable cause" clause provided human rights officials with 7 2 Tarnopolsky, "The Iron Hand", supra note 46 at 572. 73 Ibid, at 571. 7 4 For a discussion of this expansion, see Howe & Johnson, supra note 14 at 14-22. 34 much greater discretion to expand the scope of the legislation beyond the enumerated grounds.75 Hunter expressed concern about "this dangerously open-ended section", arguing that: Not only does this section exemplify the paternalism which increasingly animates m uch c ontemporary h uman r ights 1 egislation, b ut i t a lso b etrays a disturbing insensitivity to the particular rights of an employer, and to the generalized right of a free citizenry against arbitrary, ex post facto law-making by unelected public authorities.76 The Social Credit government, which replaced the NDP, apparently agreed. In 1983, it repealed the Human Rights Code and abolished the human rights commission, replacing them in 1984 with the B.C. Council of Human Rights under a new Human Rights Act. The new legislation appeared to contemplate a much more limited role for human rights in the province. The "reasonable cause" clause was eliminated and the administrative support that was available to victims of discrimination was reduced. Complaints were no longer investigated by specialized human rights officers, and legal assistance was not provided directly to victims of discrimination by the Council of Human Rights. This legislation, and the subsequent history of legislation in British Columbia, is discussed in Chapter V below. 6. Disillusion Despite the expansion of the scope of anti-discrimination laws and the strengthening of the enforcement mechanisms, the legislation and its enforcement were criticized by equality-In 1983, the chief complaint officer of the human rights branch, April Katz said: The reasonable cause provision as a catch-all for group characteristics not specifically named in the legislation is unique to British Columbia. The provision has allowed complaints to go forward on the basts of such group characteristics as physical or mental condition, sexual orientation, family status, ages under 45, ages 65 and over, sexual harassment, racial harassment and pregnancy, (quoted in British Columbia, Official Report of Debates of the Legislative Assembly (Hansard), (4 May 1984) at 4536 (Brown)) 7 6 Ian Hunter, "Human Rights Legislation in Canada: It's Origin, Development and Interpretation" (1976) 15 U. Western Ontario L.Rev. 21. 35 seekers on a number of grounds: there was an inadequate focus on human rights education; the process took too long; investigations were slow and incomplete; a process relying exclusively on individual complaints was not a sufficient strategy to deal effectively with discrimination; the human rights process overlapped with other legal processes, particularly in the workplace; and the human rights agency needed to have stronger links to the community.77 By the 1990s, there was growing dissatisfaction with human rights enforcement mechanisms across the country. Moreover, the dissatisfaction was coming from a variety of sectors. In a recent study, Howe and Johnson found that human rights agencies did not receive high ratings from advocacy groups, business organizations or human rights officials. That dissatisfaction led to large-scale reviews in a number of jurisdictions as well as internal reviews by the agencies themselves. The experience in Ontario is illustrative: in 1985, the minister of labour conducted an operational review of the effectiveness of the Ontario Human Rights Commission; in 1987, the Coopers & Lybrand consulting group conducted a review; in 1989, a comprehensive case management plan was initiated; in 1991, the Ombudsman issued a report strongly critical of the Human Rights Commission's case processing; and in 1992, the Cornish Report19 was released.80 The human rights process in 81 Ontario has also been a subject of scholarly studies including those of Howe and Johnson 7 7 These concerns are discussed in the Black Report, supra note 71 at 26-28. 7 8 Howe & Johnson, supra note 14 at 149. 7 9 Ontario Human Rights Code Review Task Force, Achieving Equality: A Report on Human Rights Reform (Toronto: Ministry of Citizenship, 1992) [Cornish Report]. 8 0 For a discussion of the Ontario efforts to improve the Human Rights Commission, see M. Kaye Joachim, "Reform of the Ontario Human Rights Commission" (2000) 13 Can. J. Admin. L. Prac. 51 at 85-89. 81 Supra note 14. 36 and Joachim.8 2 Although the review process has not been as relentless in other jurisdictions, 83 there have been a number of major reviews. This extensive review process has not led to substantial legislative reform. Some studies including the Cornish Report*4 and the La Forest Report*5 have been largely ignored, at least i f measured by the legislative response. In other cases governments have responded selectively; as discussed in Chapter V , most of the procedural recommendations in the Black Report*6 were implemented, but the substantive recommendations were shelved.87 Consequently, anti-discrimination statutes and the mechanisms for enforcing them have not changed dramatically since the 1960s. Nor has there been a sustained effort outside the federal jurisdiction, to introduce other legislative tools to promote equality, such as employment equity or pay equity legislation.88 7. Conclus ion Anti-discrimination legislation was introduced in the 1950s to address particular social wrongs. Discrimination was widespread and practiced openly. When the laws appeared to be ineffective at addressing discrimination, the enforcement system was radically altered by 82 Supra note 80. 8 3 See, for example: Black Report, supra note 71; Donna Grechner et al., Renewing the Vision: Human Rights in Saskatchewan (Saskatoon: Saskatchewan Human Rights Commission ,1996); Gerard V. La Forest et al., Promoting Equality: A New Vision (Ottawa: Canadian Human Rights Review Panel, 2000) [La Forest Report]. 84 Supra note 79. 85 Supra note 93. 86 Supra note 71. 8 7 An exception to this legislative reticence is the speedy introduction of legislation in British Columbia in response to a background paper on human rights reform. That legislation, and the process leading up to it, is described below in Chapter V. 8 8 Federally there is an Employment Equity Act, S.C. 1995, c. 44 and equal pay for work of equal value is required by the Canadian Human Rights Act, R.S. C. 1985, c. H-6, s. 11. Some provinces, including Ontario and Quebec, have adopted pay equity laws: Pay Equity Act, R.S.O. 1990, c. P7; Pay Equity Act, R.S.Q. 1995, c. E-12. Ontario adopted employment equity legislation in 1993; however it was repealed in 1995: Job Quotas Repeal Act, 1995, S.O. 1995, c. 4, repealing Employment Equity Act, 1993, S.O. 1993, c. 35. 37 creating human rights commissions. Since then, there have been incremental changes to the legislation, adding new grounds of discrimination as they became recognized as social wrongs, increasing the range of activities covered, and broadening the remedial powers of the enforcement agencies. But the basic enforcement mechanisms remain as they were in the 1960s. As will be discussed in the following chapters, conceptions of equality and discrimination, and the aspirations of equality-seekers, have changed since the 1960s. Now equality-seekers hope that society's institutions can be transformed so that they reflect and include Canadian diversity, and so that all Canadians are able to participate fully and equally in those institutions. Anti-discrimination statutes are failing to meet these aspirations. Discrimination is not practiced as openly as it once was; however, inequalities persist. In later chapters, I wil l examine anti-discrimination statutes as tools for achieving equality, and whether they can be expected to achieve the hopes of equality-seekers. But first, I need to identify and describe those hopes. I begin that process in the next chapter. 38 Chapter II: The Idea of Equality Few terms of political discourse have had as long a life and as important a role in t he m aking o f m odern h istory a s t he i dea o f e quality. F rom t he e arliest outcropping of social controversy to the clash of ideologies in our own day it has continued to arouse great expectations and grave apprehensions. It would be too much to expect that an idea carrying such passionate appeal and such symbolic force should be easy to define to everyone's satisfaction.1 1. Introduction Anti-discrimination laws aim at achieving equality by reducing the discriminatory barriers that cause inequality.2 This egalitarian goal is stated expressly in some statutes. For example, the Canadian Human Rights Act states that its purpose is: ... to give effect ... to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have ... without being hindered in or prevented from doing so by discriminatory practices .. . 3 But how effective is anti-discrimination legislation as a tool for achieving equality? The answer to that question depends on what is meant by "equality" and "discrimination". As discussed in Chapter I, anti-discrimination statutes were first introduced in the 1950s and 1960s. Anti-discrimination statutes have evolved since then, as have the concepts of 1 Sanford A. Lakoff, Equality in Political Philosophy (Boston: Beacon Press, 1968 reprint of Harvard University Press 1964 edition) at 1. 2 Some scholars have questioned whether it is appropriate to use equality to justify anti-discrimination legislation: see Paul Westen, "The Empty Idea of Equality" (1982) 95 Harvard L.R. 537-96; Matt Cavanagh, Against Equal Opportunity (Oxford: Oxford University Press, 2002). That argument has little purchase in Canada where the equality justification is expressed in the legislation and enshrined in s. 15 of the 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 l 1 [Charter], which guarantees equality before and under the law and the equal protection and equal benefit of the law without discrimination. 3 R.S.C. 1985, c. H-6, s. 2. Similarly the preamble to the Ontario Human Rights Code states that it is public policy "to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination": R.S.O. 1990, c. H.19. 39 discrimination and equality. However, the statutory evolution does not necessarily reflect the conceptual evolution. Statutes are revised for a variety of reasons. They may, for example, respond to pressure from particular stakeholder groups, to financial pressure from within government, to judicial decisions that affect the effectiveness of the statute, or to academic or other commentary on the merits of the statute. So it is not always the case that, as thinking evolves, the law does too. If the evolved anti-discrimination statutes do not incorporate current conceptions of equality, they may be limited in their ability to address discrimination and equality as they are now conceived. The effectiveness of anti-discrimination statutes, therefore, must be measured against current conceptions of equality and discrimination, or at least the debate about their effectiveness should be based on contemporary ideas of equality. However, contemporary conceptions of equality are varied and inconsistent. This is not surprising. As political scientist Douglas Rae observes: "The universal use of 'equality' as a category of thought depends upon its very abstractness, its formal emptiness".4 As a mathematical equation, we understand what it means to say that X=Y. But as an issue of social policy or justice, the idea of equality is more difficult to define. If we accept that equality is a worthy goal for social policy (an assumption that is not universally accepted), at what level do we measure equality - the individual person, their family unit, their community? To whom are they compared? And what does it mean to be equal? Any discussion of the practical application of "equality" must give it a more concrete form by answering these questions. But the answers depend on the political orientation or philosophy of those answering them. Therefore, before I begin my analysis of the effectiveness of anti-4 Douglas Rae, Equalities (Cambridge: Harvard University Press, 1981) at 3. 40 discrimination statutes as tools for equality, I must answer these questions, and to do that, I must identify the perspective from which I will answer them. I begin that process in this chapter by discussing the idea of equality. This chapter is not intended to be an exhaustive review of equality theory or its literature. The literature on equality and egalitarianism is vast and complex.5 The purpose of this chapter is much more modest. It is to provide a theoretical background for the discussion in subsequent chapters. M y aim is to illustrate some of the variety of lenses through which equality is viewed, and to explain some of the conceptions of equality that divide theorists. This chapter has three sections. In the first section of this chapter, I discuss the vocabulary of equality. This involves more than a definition of terms. Theorists do not agree on what equality means, in either its theoretical or practical application. Nevertheless, they have developed some common language to describe various ideas about what equality is or should be. This section will therefore introduce some of the terms used to describe equality and which often divide theorists. These will be relevant to discussions of equality in later chapters of this thesis. The second section focuses on two perspectives that have profoundly influenced equality theory: liberalism and feminism. Both perspectives have been particularly relevant in the context of equality for disabled people, as will be discussed in the next chapter. 5 For a review of that literature, see generally William B. Griffith, "Equality and Egalitarianism: Framing the Contemporary Debate" (1994) 7 Can. J.L. & Juris. 5-26. 41 In the last section of this chapter, I will discuss the meaning given to equality by Canadian judges. This thesis is about the effectiveness of anti-discrimination legislation. It is therefore necessary to consider equality as it is applied in that context. Anti-discrimination statutes are administered by tribunals who are bound by judicial interpretation of the meaning of equality and discrimination. The ability of the legislation to achieve equality thus depends on a combination of the scope of the protected rights and the effectiveness of the enforcement mechanisms. The scope of the legislation is determined ultimately by the courts. It is, of course, possible to critique judicial interpretation or to assess the impact of that interpretation on the achievement of equality. Certainly, the courts have not been consistent in either their interpretation of equality or their application of that interpretation. Nevertheless, their interpretation of the statutes can provide a useful description of the doctrinal limits of the legislation. In later chapters I look at the effectiveness of the enforcement mechanisms within those limits. This chapter provides a theoretical grounding for the discussion in subsequent chapters . In the next chapter, I describe the particular lens, disability rights, through which I will analyze the effectiveness of anti-discrimination laws. That chapter gives more concrete meaning to the notion of equality by describing what it means for people with disabilities. I will use that definition, or perspective, in the following chapters to analyze the effectiveness of those laws. 42 2. The Vocabu lary of Equal i ty As discussed above, equality is a vague concept. Equality theorists have therefore developed a vocabulary to give it greater meaning. This section explains the vocabulary that is used to describe equality and which serves to divide (sometimes) and unite (sometimes) various theoretical perspectives, some of which are described in the next section. There are four sets of contrasting concepts that are particularly relevant when evaluating anti-discrimination legislation: formal and substantive equality; equality of the individual versus equality of the group; equality of treatment, opportunity or result; and positive and negative rights. fa) Formal and Substantive Equality In Andrews v. Law Society of British Columbia,6 Mclntyre J. observed that Canadian courts had previously applied a formal conception of equality when assessing equality rights claims. However, as with other aspects of equality theory, there is not a uniform view of the meaning of formal equality. In its simplest conception, formal equality requires identical treatment for everyone. In this view, equality is achieved if laws, policies and practices apply identically to all people affected by them. Another view of formal equality requires that laws, policies or practices treat likes alike and unlikes differently. In this conception, known as the "similarly situated approach", distinctions are acceptable as long as they are not arbitrary. It was this conception of formal equality that the court had in mind in Andrews. Formal equality, in either view, does not concern itself with the effects of the law, practice or procedure. 6 [1989] 1 S.C.R. 143 at 165-166 [Andrews]. 7 Ibid. Mclntyre J., after noting that the similarly situated test had been widely applied across the country, stated (at 166): "The similarly situated test is a restatement of the Aristotelian principle of formal equality - that 'things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness'" [citation omitted]. 43 Substantive equality considers the effects of laws, practices and procedures in light of their social and economic context. As described by Joel Bakan, substantive equality involves social equality; that is, it requires "an absence of major disparities in people's resources, political and social power, well-being, and [an absence] of exploitation and oppression." An assessment of whether substantive equality has been affected by a law, practice or procedure requires consideration of its effect on people's economic, social and political circumstances. Are the disparities or inequalities made worse or better? Shelagh Day and Gwen Brodsky describe substantive equality as being "concerned with conditions of inequality experienced by groups, and with the imbalance in power among groups and society that is at the root of inequality."9 They elaborate: In the human rights context, the ideal implicit in formal equality is to eliminate differential treatment of individuals in relation to employment, housing, and public services. The ideal implicit in substantive equality is to eliminate systemic factors that produce conditions of inequality for disadvantaged groups, recognizing that that may mean altering systems that facially treat everyone the same. Because of this difference in focus - on differential treatment of individuals as opposed to inequality of conditions for disadvantaged groups - there is a significant difference between how much change is envisioned by formal and substantive equality theories. The formal model of equality implies that the existing frameworks are acceptable, except that there are occasional incidents of prejudice, and perhaps some marginalization of minority groups. The solution is to conciliate between individuals when there are incidents of prejudice and to ensure that all groups are included in existing institutions by being treated the same as those already inside. In other words, this version of equality anticipates little change in the functioning of institutions. 8 Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997) at 47. 9 Shelagh Day & Gwen Brodsky, "The Duty to Accommodate: Who Will Benefit?" (1996) 75 Can. Bar Rev. 433 at 461. 44 A substantive model of equality, which considers inequality in conditions and imbalances in power among groups, anticipates a deeper level of change. It posits that the functioning of institutions and the structure of relationships among groups must change significantly, and that working towards equality is a process of transformation, not minor adjustment.10 Formal and substantive equality are not mutually exclusive. Although some equality theories, such as libertarian, accept only formal equality as an appropriate purpose for state intervention, theorists who adopt a substantive conception of equality recognize that formal equality remains an important consideration. Donna Greschner, for example, does not "deny the importance of... any version of formal equality; every version contributes, in different circumstances and in different ways, to a just society."11 Although the goal of substantive equality is to transform society's institutions to eliminate the imbalances of power and conditions for disadvantaged groups, there remains a need to eliminate formal inequalities that do not impede substantive equality. For example, i f people with disabilities are to achieve substantive equality, the structures of society must be transformed to remove barriers that result from the application of mainstream norms. Sometimes, that will require recognition that a person with a disability must be treated differently to be able to participate equally. In such cases, application of principles of formal equality might impair substantive equality. On the other hand, if the disability is irrelevant to the decision being made, then there is no reason to deny that person formal equality. (b) Individual and Group Equality It is implicit in the discussion of formal and substantive equality above that equality theories differ with respect to the proper subject of equality. Is it the individual or is it the group? 10 Ibid. 11 Donna Greschner, "Does Law Advance the Cause of Equality?" (2001) 27 Queen's L.J. 299 at note 11. 45 Formal equality is primarily concerned with equal treatment of individuals. Substantive equality may address an individual case; however, it does so by considering that individual's circumstances as a member of a group. However, even theories which support substantive equality differ in their conception of the proper subject of equality. In modern liberal theory, the individual is the proper subject of equality.12 Liberal theorists who accept that equality must be substantive, such as Ronald Dworkin and Michel Rosenfeld,13 nevertheless accept that the focus is on the individual, albeit as a member of a group. For other theorists, the principal concern is the equality and well-being of groups. The passage from Day and Brodsky, which is quoted above, reflects such a concern. (c) Equality of Treatment, Opportunity, or Result Equality is a comparative concept. But what is being compared? And what does it mean to be equal? In mathematics, those questions are easily answered. We know that in the equation X=Y, the comparison is of numerical values. We also know that, for X to equal Y , those values must be the same: 99.99 does not equal 100.14 However, when dealing with equality as a question of philosophy or social justice, the nature of the comparison is less obvious. If we accept equality as a legitimate goal for social policy, what aspects of human conditions or social relations should be compared. And does equality in this context mean the same as in the mathematical context? Given the complexity of the human condition and social relations, such a standard would seem impossible to meet in most comparisons. But i f 1 2 Michel Rosenfeld, Affirmative Action and Justice: A Philosophical and Constitutional Inquiry (New Haven: Yale University Press, 1991) at 21. 1 3 Dworkin and Rosenfeld support affirmative action programs which aim at transforming institutions by increasing the representation of historically disadvantaged groups, such as Blacks or women: Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge: Harvard University Press, 2000); Rosenfeld, ibid. 1 4 Unless, of course, an assumption such as rounding to whole numbers is introduced into the equation. 46 not that standard, then what? How alike must the two sides of the equation be to be equal? Can difference be equality? Equality theorists disagree both with respect to the appropriate comparison and the degree of sameness required to determine equality. Generally, they refer to three areas for comparison: treatment, opportunity and results. But within those three concepts, there is also debate about the degree of similarity that is required. I begin with the concept of equal treatment. ' On its face the aim of equal treatment seems simple enough: all people must be treated equally. This is the goal of formal equality in its most basic form. But even this concept of equality is open to interpretation. In one view of this model, for people with disabilities, in an equal treatment model the disability is deemed irrelevant. Decisions made on the basis of that characteristic are arbitrary and, therefore, illegitimate. The equal treatment approach fails to address the practical reality that sometimes equal access for people with disabilities requires modification of architectural or organizational barriers.15 There are, however, other ways to view the concept of equal treatment. For example, a written pre-employment test that is administered in an identical manner to all job applicants and is marked without favour to any, would appear to meet the test of equal treatment. But what i f an employer knows that, because of a physical impairment, an applicant is unable to read the test or write a response? Is it equal treatment to require that they compete in the identical manner as other applicants? Aristotle's classic description of formal equality required that likes be treated 1 5 Theresia Degener & Gerard Quirrn, "A Survey of International, Comparative and Regional Disability Law Reform" in Mary Lou Breslin & Silvia Yee, eds., Disability Rights Law and Policy: International and National Perspectives (Ardsley, N.Y.: Transnational Publishers, 2002) 3 at 8. Degener & Quinn refer to this as the "formal or juridical" model of equality. 47 alike and unalikes be treated differently.16 That view of formal equality has been used to justify discriminatory laws, 1 7 but it can also be used to justify accommodating differences. More commonly, the accommodation of difference is justified through an equal opportunity analysis. Equality of opportunity may be conceived in different ways. In its classical liberal formulation, equality of opportunity meant: ... only that those obstacles to the rise to higher positions should be removed which were the effect of legal discriminations between persons. It did not mean that thereby the chances of the different individuals could be made the same. Not only their different individual capacities, but above all the inevitable differences of their individual environments, and in particular the family in which they grew up, would still make their prospects very different.18 On this conception, there is little to distinguish equal opportunity from equal treatment. But few today would hold to this narrow conception of equality of opportunity. Rae describes two alternative conceptions of equality of opportunity. Equality of opportunity may be concerned with ensuring that the prospects for obtaining the scarce resource are equal; in other words, all persons have the same probability of achieving a particular outcome, such as in a fair lottery. Alternatively, equal opportunity may mean that all persons have the same tools, or means, for obtaining the good they seek. Rae describes these as "prospect-regarding equality of opportunity" and "means-regarding equality of See above at note 7. 1 7 This was done through application of the similarly-situated test described above at note 7 and accompanying text. 1 8 F.A. Hayek, New Studies in Philosophy, Politics, Economics and the History of Ideas (Chicago: University of Chicago Press, 1978) at 141. 48 opportunity".19 Equal means may not lead to equal prospects. For example, i f two persons of unequal strength are competing for a good that only requires the exertion of strength, their prospects for success will be different. Even i f both are given a tool that increases their strength by the same amount, so their means-regarding equality of opportunity is equal, their prospects wil l remain unequal. A distinction is also drawn between "formal equality of opportunity" and "fair equality of opportunity". According to formal equality of opportunity, two persons have equal opportunity to attain a particular result i f neither faces a legal or quasi-legal barrier to the result that the other does not face. Fair equality of opportunity requires that differences in the prospects of persons competing for the scarce resources be a function of differences in natural abilities and skills, and not of differences in socially-generated abilities and skills. In other words, competitors should not be disadvantaged by socially-caused differences that result from social or income class.20 Formal equality theorists argue, in the tradition of classical liberals, that the state's role is limited to the removal of legal or quasi-legal barriers that prevent individuals from competing for scarce goods and resources. Substantive theorists argue that, where there has been a history of discrimination creating a disadvantaged class, the mere elimination of barriers will not be sufficient to achieve equality. Fair equality of opportunity may require the eradication of social disadvantages, which may justify an unequal allocation of some goods. 1 9 Rae, supra note 4 at 65-66. 2 0 Rosenfeld, supra note 12 at 28-29. 49 Equality of opportunity is used to justify a requirement that barriers to equality be removed. According to Degener and Quinn: The equal opportunity paradigm recognizes both stereotypes and structural barriers as obstacles to inclusion: i f stereotypes are the basis for discrimination then the fact of disability must be ignored, but disability must be taken into account when environmental or social norms act as the bars to 21 genuine access and inclusion. Equality of opportunity ensures that people with disabilities have equal chances; it does not ensure equal outcomes. According to Rae, where there is equality of opportunity, "opportunities of power, right and acquisition are to be equal: power, right, and acquisition themselves are not." Equality of results requires equality in power, right and acquisition. The focus of an equality of results analysis is on outcomes not opportunities. Some writers distinguish "substantive equality of opportunity" from "substantive equality of results". Both will require some intervention to achieve the desired outcome, but the purpose of the intervention differs. In the former, it is to equalize opportunities; in the latter it is to equalize results.23 Philosopher Christine Koggel states that liberal theory encompasses both formal and substantive equality of opportunity. It does not encompass substantive equality of results, which is generally associated with a position which she describes as "radical egalitarianism".24 2 1 Degener & Quinn, supra note 15 at 9. 2 2 Rae, supra note 4 at 64. 2 3 The difference may be more theoretical than practical. As discussed in Chapter IV below, in discrimination cases, the outcome of an employment competition, or competitions, may be used to demonstrate that the complainant was denied an opportunity because of a prohibited ground of discrimination. 2 4 Christine M. Koggel, "A Feminist View of Equality and its Implications for Affirmative Action" (1994) 7 Can. J.L. & Juris. 43 at 43. 50 The effect of these different equality goals - equal treatment, opportunity or result - is illustrated in a problem posed by lawyer/philosopher Michel Rosenfeld: i f a group of one hundred people is accidentally trapped in a building that is on fire and there are only sufficient firefighting resources to rescue fifty of them, how are those resources to be justly distributed?25 Applying a purely formal equal treatment model, the only solution would be to refuse to rescue any of them; all one hundred would die. That would also meet the goal of equal results. Rosenfeld suggests, in these circumstances equality of opportunity is a more just goal. Equality of opportunity would mean that all of those trapped in a building would have the same opportunity to be rescued, but not all will have the same result. For example, a fair lottery would give each of them the same chance to be rescued, but only half would survive. More generally, Rosenfeld argues that "justice requires the implementation of equality of opportunity whenever equality of result would be mandated i f it were not impossible to achieve."26 So, in a fire, i f it is impossible to achieve equality of results by saving everyone, then justice requires that everyone have an equal opportunity to be saved. There are other difficulties associated with the goal of result equality. Lawyers Degener and 27 Quinn observe that, as a policy goal, "equality of results poses some thorny problems". First, who is responsible for ensuring an equal allocation, the private or public sector? Second, i f equal results require a strong welfare state, will it interfere with market ideology? Third, equal results may flow from policies that are unjust. For example, segregated schools for people with disabilities may provide equal educational opportunities and therefore be deemed legitimate under an equal results analysis. Equal results may legitimize formal 2 5 Rosenfeld, supra note 12 at 23. 2 6 Rosenfeld, supra note 44 at 24. 2 7 Degener & Quinn, supra note 15 at 8. 51 inequality. This problem may, however, be related to the question of which results are compared, rather than whether results are the measure of equality. If, in the segregated schools example, the result measured is participation in society, rather than performance on skills-based assessments, the conclusion might be quite different. Similarly, i f wealth is the measure of equality, a generous welfare program could create equality for people with disabilities through a redistribution of wealth. Equality could be enhanced further by recognizing that people with disabilities incur additional costs and adjusting their wealth to compensate for those costs. However, in the unlikely event that a state were to initiate such a scheme, it would eliminate only one inequality. People with disabilities would still be prevented from participating in society as equal citizens because of the other barriers they face. On the measure of full participation, equal wealth would not achieve substantive equality of results. (d) Negative and Positive Rights In is common for theorists to speak of "negative" or "positive" liberties or freedoms. Yet, as with other equality-related concepts, their descriptive value is questionable. Negative liberty is described as the area in which an individual must not be interfered with by others, including the state;30 "liberty in this sense means liberty from."31 Positive liberty is the freedom to be one's own master, to have one's life and decisions depend on oneself rather than external forces. It is the freedom to be. These concepts of negative and positive 28 Ibid, at 8-9. 2 9 See, Isaiah Berlin, "Two Concepts of Liberty" in Four Essays on Liberty (Oxford: Oxford University Press, 1969), as reprinted in Michael J. Sandel (ed.), Liberalism and Its Critics (New York: New York University Press, 1984) at 15. 30 Ibid, at 16. 31 Ibid, at 19. 32 Ibid, at 22. 52 freedoms have led some to speak of corresponding concepts of rights. That is, i f freedoms are negative, rights that protect those freedoms are also negative. For example, the right to free speech is said to be a negative right in that it restrains government from interfering in an individual's speech.34 Similarly, positive freedoms are protected by positive rights. Negative rights are protected through restraints on state action; positive rights are associated with a duty for positive state action. So, for example, education and health care are positive rights because they enhance positive freedom - they encourage self-development. It can be argued that the state therefore has a duty to provide schools, teachers, books, etc. Thus, on this analysis, the positive freedom of self-mastery creates a positive duty on the state to provide the means to self-mastery. However, the distinction between positive and negative rights and their connection to corresponding freedoms is not always clear. For example, enforcement of the negative right to free expression requires positive intervention by the state through the judicial system. In practice, there may be little to gain by engaging in the philosophical exercise of connecting negative and positive rights to corresponding freedoms. It is significant, however, that political philosophers differ in the extent to which they recognize a role for the state in advancing equality interests. For some, the state's role should be limited to actions that protect individuals from being interfered with in their pursuit of resources that could help 3 3 Berlin observes that: "The freedom which consists of being one's own master, and the freedom which consists in not being prevented from choosing as I do by other men may, on the face of it, seem concepts at no great logical distance from each other - no more than negative and positive ways of saying the same things.": Ibid, at 23. Nevertheless, the two notions have developed in quite different directions. 3 4 Patricia Illingworth & Wendy E. Parmet, "Positively Disabled: The Relationship between the Definition of Disability and Rights under the ADA" in Leslie Pickering Francis & Anita Silvers, Americans with Disabilities: Exploring Implications of the Law for Individuals and Institutions (New York: Routledge, 2000) 3 at 5. " 53 them achieve equality. For others, the state has an obligation to take positive steps to achieve equality either by providing the means to those with few resources to gain a greater share, or to redistribute the resources to ensure those with less get more. The divide between those who support state action to achieve equality and those who see it as inappropriate interference with individual liberty is evident even between philosophers who share a broad theoretical orientation. 3. Perspectives on Equality Equality has been an issue in political decision-making since ancient times.3 6 But what equality means and how it should be applied continue to be debated. According to political scientist Sanford Lakoff, three conceptions of equality - liberal, conservative and socialist -have existed since the middle ages. He states: At first the three concepts of equality, appear in religious terms and with relation chiefly to the organization of the church. From these religious grounds they are transferred in the seventeenth century, though to a social setting. By the end of the eighteenth century all three concepts have acquired a certain distinctness addressed almost entirely on secular philosophic premises. In t he n ineteenth c entury existence o f t he t hree t raditions i s m ade p erfectly clear as they are brought into conflict with one another.37 As Lakoff tells it, liberals advocate for competitive equality based on a belief in individualism and universal rationality. Socialists mainly believe that equality is best expressed in collectivism. Conservatives, who oppose levelling tendencies, believe that the 3 6 Griffith, supra note 5 at para. 19. 3 7 Lakoff, supra note 1 at 9. 54 demand for equality is based on "envy and appetite rather than a sense of justice"/ 5 According to Lakoff, by the end of the nineteenth century, the philosophical discussion of equality between and within these three traditions "waned to the point of utter disappearance".39 Lakoff was writing in 1964. In the last half of the twentieth century, the debate about equality was resurrected with intensity. In addition to the wealth of academic scholarship on equality, social movements - such as civil rights, feminism and disability rights - propelled the equality debate. So, while the three historical concepts of equality are reflected in the contemporary debate, new voices are also heard. And those voices bring a rich diversity of perspectives. To suggest that there are only three modern concepts of equality would be a gross oversimplification of the debate. M y aim in this section is not to review all of the many perspectives on equality, or even to present a thorough and comprehensive analysis of one particular perspective. M y purpose in this section is merely to illustrate the range of perspectives on equality. I do so by focusing on the variety of ideas about equality within just two schools of scholarship: liberalism and feminism. They are useful illustrations for several reasons. Both of them have generated an abundance of scholarship within which there is a broad range of perspectives. They have been powerful forces in the equality debate. And both of them have strongly influenced the disability rights perspective, which will be my focus in the next chapter. Ibid, at 10. Ibid, at 10-11. 55 The following discussion of liberal and feminist perspectives is brief. This thesis is not about either liberalism or feminism; a comprehensive survey of either perspective is therefore beyond its scope. Instead, I rely primarily on the work of scholars I have found helpful in understanding the range of perspectives.40 (a) Liberal Perspectives Classical liberalism emphasizes individual freedom and equality. But, for classical liberals, individual freedom did not mean freedom from all constraints by others. For people living in society, individual freedom could only be ensured through laws that prevented others from restraining an individual's freedom. As Hayek puts it, liberalism "recognizes that i f all are to be as free as possible, coercion cannot be entirely eliminated, but only reduced to that minimum which is necessary to prevent individuals or groups from arbitrarily coercing others."41 Individual freedom, in this conception, "meant primarily that the free person was not subject to arbitrary coercion."42 Further, to the extent that coercive laws were acceptable at all, they had to be applied equally. That is, government was required to apply the same formal rules to all. Classical liberals demanded "equality of opportunity", by which they "meant only that those obstacles to the rise to higher positions should be removed which were the effect of legal discriminations between persons."43 Thus, in classical liberalism individual freedom was protected by minimal.state action and formal equality. 4 0 For the liberal perspectives, I rely on Michel Rosenfeld, supra note 12; for the feminist perspectives, I rely on Dorothy E. Chunn & Dany Lacombe, eds., Law as a Gendering Practice (Don Mills, Ont.: Oxford University Press, 2000). 4 1 Hayek, supra note 18 at 133. 4 2 Ibid, at 131. 43 Ibid, at 141. 56 However, contemporary liberal theorists vary considerably in their attachment to the elements of liberalism described above. Some view formal equality as an inadequate goal for liberalism, others are comfortable with a significant role for the state in achieving equality. Rosenfeld groups the contemporary liberal equality arguments into four broad categories: libertarian, contractarian, utilitarian and egalitarian.44 Rosenfeld states that the libertarian position, which can be traced to the classic works of John Locke and is found more recently in the work of Robert Nozick,4 5 stresses individual autonomy and property rights, with the role of state being limited to protecting the lives and property of its citizens and enforcing contracts.46 The libertarian position strongly opposes any action by the state to achieve equality through positive measures such as affirmative action. However, libertarians may support measures to avoid arbitrary discrimination based on grounds such as race or colour (Rosenfeld refers to this as "first-order discrimination").47 The libertarian position is closest to the classical liberal position described by Hayek. The contractarian position can be traced to the classical social contract theory of Hobbes, Locke, Rousseau and Kant. In contractarian theory, the legitimacy of principles of justice depends on the consent of those who are supposed to be bound by them. The purpose of this social contract is to provide a balance between the social cooperation necessary for the proper functioning of society and protection of the individual's right to pursue his or her own Rosenfeld, supra note 12. 4 5 Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books Inc., 1974). 4 6 Rosenfeld, supra note 12 at 52. 47 Ibid, at 61. In its most extreme form, libertarians oppose even that degree of interference in private affairs: see, for example, Richard A. Epstein, Equal Opportunity or More Opportunity: The Good Thing about Discrimination (Trowbridge, Wiltshire: Institute for the Study of Civil Society, 2002). 57 conception of the good.4 8 The most influential contemporary proponent of the contractarian position is John Rawls. Indeed, much of the equality debate of the last quarter century responds to his A Theory of Justice.49 Rawls asks what principles of justice parties would consent to from behind a "veil of ignorance" that prevents them from knowing their place in society or their natural talents and abilities.50 He concludes that they would agree to two principles: First, "Each person is to have an equal right to the most extensive total system of basic liberties compatible with a similar system of liberty for al l ." 5 1 Second, "Social and economic inequalities are to be arranged so that they are both: (a) to the greatest benefit of the least advantaged .. .and (b) attached to offices and positions open to all under conditions of fair equality of opportunity."52 So, for Rawls, state action is justified to rearrange social and economic inequalities in some circumstances. Rawls' purpose was to develop a theory of justice, not merely a theory of equality. Nevertheless, his theory, particularly his second principle, addresses equality and has been the starting point for much of the contemporary discussion of equality theory. The utilitarian seeks to maximize welfare. Rosenfeld distinguishes three utilitarian approaches: "those who treat considerations of social utility as being paramount;... those others that treat such considerations as being legitimate, provided individual rights are properly considered"; and Ronald Dworkin's utilitarian argument.53 For the pure utilitarian, the focus on utility is exclusive. A l l questions of individual rights or deserts become Rosenfeld, supra note 12 at 65. 4 9 John Rawls, A Theory of Justice (Cambridge, Mass.: revised edition (1999). 5 0/te/. a t l l . 51 Ibid, at 266. 52 Ibid. 5 3 Rosenfeld supra note 12 at 94-95. Harvard University Press, 1971). My citations are to the 58 questions of utility. Positive actions of the state that interfere with individual rights are justified i f such actions result in an increase in overall welfare. However, a pure utilitarian argument could also be used to justify first-order discrimination.55 Under a'limited utilitarian argument, considerations of social utility are subject to individual rights. For example, affirmative action would be justified either i f it did not violate any individual rights or, i f it did violate individual rights, the gain in social utility would be so great that it would outweigh the impact on individual rights.56 Under this limited utilitarian analysis, first-order discrimination could be justified i f the benefit was great. For Dworkin, the right to be treated as an equal is fundamental. That does not mean that each person has "the right to receive an 57 equal lot, but 'the right to be treated with the same respect and concern as anyone else.'" Dworkin claims that his model is able to justify affirmative action without legitimizing first-order discrimination. Rosenfeld's last grouping includes egalitarians. The egalitarian argument, as advanced by Thomas Nagel, says that persons are morally equal and each has "an equal claim to actual or possible advantages". Under egalitarianism, needs are ordered and given priority, with preference to the most urgent needs. Improving the welfare of the worst off is a more urgent need than improving the welfare of the better off. 5 8 According to Rosenfeld, this model "would seem to require the pursuit of equality of result rather than of equality of opportunity." In a society characterized by inequalities of wealth, education and natural 54 Ibid, at 95. 55 Ibid, at 100. 56 Ibid. 57 Ibid, at 104. S i Ibid, at 116. 59 abilities, equality of opportunity will lead to inequalities of result. So merely pursuing equality of opportunity would not ensure that the welfare of the worst off is improved. It follows that, under this model, state action to redistribute welfare to ameliorate the lot of the worst off appears to be justified. As Rosenfeld's groupings demonstrate, there is within liberal rights discourse a spectrum of views on the meaning of equality and the role of the state in addressing inequality.60 What unites them is their focus on the individual. According to Rosenfeld, it is widely accepted that the proper subject of equality is the individual rather than the group.61 "In other words, regardless of what equality may require in concrete situations, it is the individual rather than the group who is entitled to such equality."62 However, many theorists who do not share that liberal perspective apply a communitarian vision of equality. For them, the proper subject of equality is not the individual; rather it is the equality or welfare of groups. Both communitarian and liberal views can be found within feminist perspectives on equality, to which I now turn. Cb) Feminist Perspectives Like liberal theorists, feminist perspectives encompass a broad range of theoretical frameworks. Dorothy Chunn and Dany Lacombe provide a helpful introduction to the range 59 Ibid, at 117. 6 0 Rosenfeld's grouping is not the only taxonomy of conceptions of equality. Trebilock organizes them as "autonomy theories", which include classical liberal or libertarian theories, and "welfare theories", which include utilitarian theories, efficiency theories, distributive justice theories, and communitarian theories. Michael J. Trebilock, The Limits of Freedom of Contract (Cambridge: Harvard University Press, 1993) at 192-204. 6 1 Hayek observes that the British or classical liberal tradition focused on the individual; however, in continental Europe, liberals were more likely to focus on the self determination of groups: Hayek, supra note at 119-120. 6 2 Rosenfeld, supra note 12 at 4. 60 of feminist perspectives. Their analysis addresses legal feminism, the feminist critique of law. And equality figures prominently in their discussion of feminist frameworks. It is therefore relevant to my thesis, which considers the impact of law, at least as it is expressed and applied through anti-discrimination statutes, on equality. Chunn and Lacombe divide feminist theoretical frameworks into two groups: one views law as instrumental; the other sees law as a discourse.64 In the first group, which includes liberal and radical feminists, law is "a set of rules that can be remoulded through feminist-inspired legal reforms".65 In the second group are feminists who advance a "social constructionist conception of law as a hegemonic discourse that can be deconstructed and reshaped through the mobilization of feminist counter-discourse(s)."66 Chunn and Lacombe state that liberal feminists start from the liberal assumption of sameness among individuals in their ability to reason. Moreover, for liberal feminists the evident gender inequality is not the result of innate differences between gender classes. Rather, inequality results from women's adoption of roles, such as caregiver or housekeeper, that prevent them from developing their full potential. Further, when they engage in paid employment, they are not given the same opportunity to be successful as are male employees. According to Chunn and Lacombe, liberal feminists determine women's equality by comparing women to men; that is, "men's lived experience is the standard to which women should aspire."67 Liberal feminists therefore focus on achieving equality through gender-6 3 Chunn & Lacombe, supra note 40 at 2-18. 6 4 However, they caution that feminist legal scholarship, particularly Canadian, is difficult to theoretically categorize because the categories are "fluid" and scholars may use different theoretical frameworks depending on the issue or audience: Ibid, at 2. 65 Ibid. 66 Ibid. 67 Ibid, at 4. 61 neutral laws and by using the law as a tool to ensure that women have an equal opportunity "to participate in the (public) world of men." Radical feminists share with liberals the view that law is instrumental. However, for radical feminists law is a tool used by men to preserve a society that is premised on male domination and female subordination. Chunn and Lacombe state that radical feminists reject the liberal notion of inter-gender sameness. Instead, they see the genders as fundamentally different with irreconcilable interests. Gender inequality is not an historical accident resulting from bad laws; rather, according to radical feminists, "it is the product of male design."69 Since the law is a tool designed to perpetuate male domination of women, it cannot be an effective tool for women's liberation or equality. According to Chunn and Lacombe, for radical feminists, the route to sex equality is through "disengagement from existing (male) structures and the creation of women-centred alternatives."70 In the 1980s, liberal and radical feminists recognized limitations in their theories. Their resulting theoretical modifications have brought the perspectives closer. As Chunn and Lacombe tell it, liberal feminists realized that formal rule equality had not led to substantive equality for women. They concluded that "treating unalikes (i.e., women and men) as i f they were similarly situated merely reproduced and possibly even exacerbated existing inequalities."71 Instead, they focused on the effects of laws on women with the aim of achieving equality of outcomes or results for women. Radical feminists realized that 69 Ibid, at 5. 70 Ibid, at 6. 71 Ibid, at 8. 62 disengagement often led to isolation and marginalization. They sought to develop strategies designed to transform patriarchal institutions including law. They sought to integrate women's perspectives and experience into all social institutions, challenging inequality through integration rather than separation. These variations on liberal and radical feminist perspectives, which Chunn and Lacombe refer to respectively as "result-equality feminism" and "integrative feminism", have converged in contemporary feminist strategies.72 They collaborate in seeking "legal reforms that synthesize the principles of equality and specificity for women." This approach requires "attention to the principles of formal and substantive equality and therefore to both inter- and intra-gender differences." Chunn and Lacombe state that socialist feminists reject both the liberal feminist perspective "of the state as neutral arbiter and the law as an impartial instrument for the redress of (sex) inequality" and the radical feminist view that law is a weapon used by men to perpetuate their domination of women. 7 4 For socialist feminists, the state, law and patriarchy are all socially constructed and can change as social relations change. For them, law is a "hegemonic process - an apparatus, or ensemble of practices, discourses, experts, and institutions, that actively contributes to the legitimation of a social order." Neither the social order nor social relations are homogenous or totally fixed. It is therefore important to analyze differences within genders and commonalities between them and change is possible. They argue that women's position in liberal states "is premised not only on their gender Ibid, at 7. Ibid, at 8. Ibid, at 9 Ibid, at 10. 63 subordination in both the public and private realms but also on their class location." Socialist feminists noted that women in different social classes may experience law and legal institutions very differently. Chunn and Lacombe observe that for socialist feminists, and others who conceptualize law as a hegemonic process, "law becomes an ensemble of practices and discourses, or resources, that people can mobilize to reproduce or transform the conditions under which they live. In other words, law becomes a site of struggles." (c) Summary This survey of liberal and feminist perspectives, though brief and incomplete, demonstrates the rich variety of theoretical approaches to equality within and between those two methodologies. For some, equality is the central or fundamental concern; for others, to the extent that equality is a concern at all, it derives from other interests. For the purposes of this thesis, it is not necessary to analyze the various theories in detail. Nor is it necessary to consider their relative merits. It is, however, important to recognize that, although all of these theories recognize some role for the state in protecting equality, they differ considerably on what that role should be. Those differences become clear when questions involving the practical application of equality theory are considered. Even the most radical 78 egalitarians do not argue that all persons must be equal in all respects. Michel Rosenfeld states: In the most general terms, in any complex socio-political universe, the implementation of any theoretical conception of equality promotes not 76 Ibid. 11 Ibid, at 12. 7 8 Rosenfeld, supra note 12 at 16. 64 equality in general but certain particular equalities that are necessarily accompanied by correlative inequalities.79 Therefore, to evaluate the effectiveness of any process for achieving equality, as I will be doing in subsequent chapters, it is necessary to identify the particular equalities that are sought. M y aim is to move from the theoretical to the practical. Part of the practical reality is that those who administer anti-discrimination legislation - human rights tribunals and commissions - are constrained in their ability to promote equality or eliminate inequality. As administrative tribunals, they are confined to the jurisdiction given to them by the legislature. That is, they may only address equalities or inequalities that are expressly or impliedly included in their enabling legislation. I will return to this issue in Chapter IV. Tribunals and commissions are also constrained by the meaning(s) given to equality by the judiciary. Therefore, when assessing the ability of anti-discrimination statutes to achieve particular equalities, the judicial perspective forms part of the context that ought to be considered. As we shall see in the next section, that meaning has been influenced by some of the perspectives discussed above. 4. Judicial Perspectives Over the last two decades, the Supreme Court of Canada has consistently expressed its support for the concept of substantive equality. It has not always been consistent in its application of that concept, and the strength of its commitment is not always apparent.80 But on a theoretical level, it has repeatedly adopted substantive equality as the appropriate goal of 19 Ibid, at 13. 8 0 See, for example, Eaton v. Brant County Board of Education [1997] 1 S.C.R. 241; Gosselin v. Quebec (Attorney General, [2002] 4 S.C.R 429; Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657 [Auton]. 65 Q 1 equality rights laws. For example, in O 'Malley, the Court adopted a definition of discrimination that went beyond formal conceptions of equality, noting that sometimes people had to be treated differently to achieve equality: the Court read a duty to accommodate into the legislation. In Andrews, Mclntyre J., with the agreement of the majority of the Court, rejected the formal similarly-situated test for the resolution of equality questions in favour of a substantive approach, once again accepting that sometimes equality requires different treatment.83 And in the Meiorin*4 decision, the Court indicated its approval of this observation from Day and Brodsky: The difficulty with this paradigm [that accepts the status quo as 'normal' with adjustments made to accommodate those who are 'abnormal'] is that it does not challenge the imbalances of power, or the discourses of dominance, such as racism, ablebodyism and sexism, which result in a society being designed well for some and not for others. 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'. The Court accepted the argument that, "[interpreting the legislation primarily in terms of formal equality undermined its promise of substantive equality.. , . " 8 6 and unanimously held 0*7 that employers "must build conceptions of equality into workplace standards." The substantive conception of equality adopted by the Court in Andrews and Meiorin reflects the collaborative strategy of "result-equality" and "integrative" feminists. That collaboration ' Ontario (Human Rights Commission) and O'Malley v. Simpsons-Sears Limited, [1985] 2 S.C.R. 536. 2 Andrews, supra note 6. 3 Ibid, at 163-71. 4 British Columbia (Public Service Employee Relations Commission) v. BCGEU, [1999] 3 S.C.R. 3 [Meiorin]. 5 Ibid, at para. 41, citing Day & Brodsky, supra note 9 at 462. 6 Ibid. 1 Ibid, atpara.68. 66 was evident in interventions by the Women's Legal Education and Action Fund (LEAF) in both these cases.88 The courts have adopted the language of substantive equality in recognizing that sometimes equality requires that people be treated differently and that it may require that institutions be reformed to reflect a broader image of society. They have been less enthusiastic about imposing positive obligations on government to achieve substantive equality. Writing in 1997, Bakan observed that the Court had refused to recognize positive equality rights under 89 the Charter or impose an obligation on government to take action to protect equality rights. Subsequently, the Court appeared to shake off its reluctance to require positive action to protect equality. In Vriend,90 it found that the absence of protection from discrimination based on sexual orientation violated the rights of gays and lesbians. The Court applied a substantive analysis in finding that the exclusion of gays and lesbians from the anti-discrimination legislation adversely effected them. The subject of equality in this case was the group not individuals. The Court was concerned, among other things, that the message sent to the public was that discrimination on the basis of sexual orientation is acceptable. In finding a Charter contravention, the Court found, in effect, that the government had a positive duty to take action to protect the equality of gays and lesbians. Similarly, in Eldridge,91 the Court held that the government of British Columbia contravened the Charter by failing to provide sign language interpreters to make medical services available to deaf 8 8 For an analysis of the role played by feminist activists in achieving this substantive interpretation of equality, see Christopher P. Manfredi, Feminist Activism in the Supreme Court (Vancouver: UBC Press, 2004). 8 9 Bakan, supra note 8 at 49-51. 90 Vriend v. Alberta, [1998] 1 S.C.R. 493. 91 Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624. 67 people; in effect, the government had an obligation to take positive action to ensure that deaf people received equal benefit of medical services. However, there are recent signs that these cases may be anomalies. In Auton, the Court stated that it "has repeatedly held that the legislature is under no obligation to create a particular benefit. It is free to target the social programs it wishes to fund as a matter of 92 public policy, provided the benefit itself is not conferred in a discriminatory manner". The Court has not resiled from its express support for substantive equality, nor has it overturned decisions such as Meiorin, Vriend and Eldridge that represent high-water marks for substantive interpretation. So, though its commitment to the concept of substantive equality may be suspect, particularly i f some positive government action is required, it is open to those who must apply judicial interpretations of equality to adopt interpretations consistent with the Court's most egalitarian analysis. 5. Conclusion For more than half a century, Canadian legislators have sought to protect equality rights through anti-discrimination legislation. But as I have shown, there are many and often contradictory ideas of equality. Before I can assess the effectiveness of legislation protecting or promoting equality, I must answer the question: Which equality? As Rae observes: To assert "X=Y" is to say nothing about X or Y . The claim would stand i f both symbols denoted numbers, formal sets of identical elements, the masses of twin planets, two poker hands of the same value. Equality is bereft of descriptive historical particulars. More definite terms (Indianapolis, Grant's 9 2 Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657 at para. 41. 68 Tomb) are tethered on short ropes to time and place, held down by the narrow limits of their referents. Equality and other formal terms float freely across layers of time, the points of the compass, the bounds of topical reference. Can we imagine that the simple formal idea of equality contains enough information, enough specificity, enough texture, to be capable of direct and consistent application to a concrete, complex world? 9 3 In this chapter, I began to provide content to the concept of equality by describing a vocabulary of equality and by suggesting a range of possible equalities. However, those equalities remain too abstract to permit assessment of the practical effectiveness of legislation. Knowing that the goal is substantive equality for groups, possibly through positive government action, is helpful but insufficient. Equality must be made more concrete. In the next chapter, I will provide the referents needed to apply equality in this "concrete, complex world". I will do that by identifying a lens - disability rights - through which to view equality. And I will tether that perspective of equality to this time and place by putting it in its historical context and by identifying tangible (though not necessarily physical) barriers in the real world that prevent equality today. With those referents, I will be able to answer the question: Which equality? That answer will provide the focus for the analysis in later chapters of this thesis. Rae, supra note 4 at 3. 69 Chapter III: Equality and Disability Psychologically, socially, and legally, the disabled throughout history have enjoyed among themselves a peculiar 'equality'; they have been equally mistrusted, equally misunderstood, equally mistreated, and equally impoverished.1 1. Introduction Jacobus tenBroek, one of the authors of this quote, was a leading American legal scholar; he was also a leading disabled activist. He was blind and was a founder of the National Federation of the Blind and its president for 21 years.2 tenBroek and Matson describe a world in which people with disabilities inhabited the bleak margins of society. Yet disability did not feature prominently in the rights discourse of the time. When, in 1950, the Canadian Senate Special Committee on Human Rights received submissions on the need for a Canadian B i l l of Rights, there were no submissions from advocates of or for disabled people, nor were there any references to disability (or to language more typical of the era such as "the handicapped" or "cripples") in the submissions of those who did appear.3 When anti-discrimination legislation was introduced in the 1950s and 1960s, the grounds of discrimination that were prohibited by such legislation included "race", "colour", "ethnic origin", "religion", "age", and "sex", but not "handicap" or "disability".4 1 Jacobus tenBroek & Floyd W. Matson, "The Disabled and the Law of Welfare" (1966) 54 Cal. L.R. 809 at 814. 2 Jacobus tenBroek, "The Right to Live in the World: The Disabled in the Law of Torts" (1966) 54 Cal. L.R. 841. 3 Senate, Special Committee on Human Rights and Fundamental Freedoms, Proceedings, (1950). 4 For example, when the first consolidated Human Rights Act was introduced in British Columbia, it prohibited employment discrimination on the grounds of "race, religion, sex, colour, nationality, ancestry, or place of origin" and age between the years of 45-65; "disability" or "handicap" were not mentioned: S.B.C. 1969, c. 10, s. 5. 70 Why was there so little discussion of disability in equality rights discourse? The inequality of people with disabilities should have been apparent. As tenBroek and Matson observed in 1966, "the two conditions - poverty and disability - are historically so intermeshed as to be often indistinguishable."5 They noted that in the United States, at the time they were writing, no more than six percent of people with serious physical disabilities were employed in ordinary non-subsidized occupations, with another two or three percent in subsidized sheltered employment.6 It is likely that disability was absent from the discussion of equality because the inequities associated with disability were not viewed as a rights issue. The prevailing contemporary model for social policy affecting the disabled - the medical model -located the source of problems associated with disability within the disabled individuals: the solution was to heal the individual rather than to seek legal remedies or change societal responses. Inequities associated with disability are now widely accepted as issues of human rights. Disability is included in rights discourse, and legislation in all Canadian jurisdictions prohibits discrimination based on disability. Nevertheless, people with disabilities remain significantly disadvantaged - they have less education, higher levels of unemployment and lower income levels than people without disabilities.7 Why is it that, despite the inclusion of 5 tenBroek & Matson, supra note 1 at 809. 6 Ibid, at 810. 7 The most recent Canadian statistics indicate the following: 37% of adults with disabilities have less than high school education compared to 25% of those without disabilities, 11% of people with disabilities have a university education compared to 20% without; the employment rate for adult males with disabilities is 59% (48% for women with disabilities) compared to 84% for males without disabilities; and the after -tax household income for persons with disabilities (aged 16-64) is $51,671 compared to $64,810 for those without disabilities: Government of Canada, "Advancing the Inclusion of People with Disabilities 2004", online at Social Development Canada website, http://www.sdc. (accessed March 7, 2005). 71 disability in rights discourse and in anti-discrimination legislation, people with disabilities continue to be disproportionately represented in society's margins? Are anti-discrimination statutes the wrong solution to the problem of the inequalities of disabled people? I will begin to address these questions in this chapter In the previous chapter, I discussed conceptions of equality. In this chapter, I will narrow the focus to consider equality through a particular lens - disability rights. I focus on disability rights for several reasons beyond my personal interest in the subject. First, as noted above, the inequalities associated with disability are a particularly troublesome and persistent problem. Second, disability is one of the most recent issues to have emerged in equality rights discourse. Consequently, it borrows from more established theories of equality, including liberalism and feminism, to incorporate the most current conceptions of equality. Conclusions drawn from an analysis of disability rights will therefore be relevant to other contexts such as race or gender equality. Finally, the causes of the inequalities associated with disability are varied and complex. Sometimes they are caused by simple prejudice or bigotry, sometimes by misunderstanding or misconceptions, and sometimes by the organization or structure of society's institutions. By looking at equality through a disability rights lens, it is possible to observe a range of inequalities many of which are of concern to other equality-seeking groups. Current conceptions of disability rights are best understood in contrast with earlier models of disability policy. Until recently, disability policy has been driven by a medical model in which disability is viewed as a problem located within an individual. Disability rights 72 activists, and many others, are persuasive in their view of disability as, in large measure, a social construct. The source of inequality is located not in the disabled individual, but in the environment in which such an individual lives - an environment that has been shaped, both architecturally and culturally, by an expectation that disabled people will not participate fully in society.8 The remedy for inequality for such activists is, therefore, to alter the environment, not to cure the person with a disability. The disability rights perspective, in which disability is seen as socially constructed and an issue of inequality, is a reaction to what has become known as the medical model. This perspective grew out of the dissatisfaction of disabled people with a model that cast them as victims of their own physical condition. That medical model remains deeply-rooted in society's conception of people with disabilities. This chapter begins therefore with a relatively detailed discussion of the genesis and ideology of the medical model. I turn then to the social model and the disability rights movement out of which it was generated. In the last section of this chapter disability and equality theory is discussed, with a particular focus on a debate about the effectiveness of anti-discrimination laws as a tool for achieving equality for disabled people. The debate is between those who categorize people with disabilities as a distinct minority and those who view disability as a universal part of the human condition. The former group approaches the inequalities associated with disability as an issue of minority rights amenable to change through anti-discrimination laws. The latter seek to achieve equality by broadening the range of the "normal", thereby creating a more inclusive society. Despite these differences, both groups reject the medical model of disability. 8 For a more thorough discussion of the impact of environmental barriers, see M. David Lepofsky, "The Duty to Accommodate: A Purposive Approach" (1992) 1 Can. Lab. L.J. 1 at 6-7 ["Duty to Accommodate"]. 73 2. The Med ica l Mode l (a) Genesis of the Medical Model Exclusion of disabled people from society's mainstream has a long history. Negative attitudes about disability can be traced to at least biblical times.9 A large section of Leviticus, in the Old Testament, is devoted to listing the mental and physical perfections that are required to participate in religious ritual. Infanticide of disabled children was advocated in ancient Greece and Rome and was required by law in Sparta. In medieval Europe people with disabilities were associated with evil; for example, Martin Luther recommended killing children with profound disabilities.10 Current Canadian attitudes about the role of people with disabilities are rooted in pre-colonial England, where the exclusion of people with disabilities was mandated by law, not merely enforced by cultural intolerance. Beginning as early as the fourteenth century, in response to the labour shortages that followed the Black Death, English lawmakers enacted legislation designed to ensure that those who could work did work. The Ordinance of Labourers, 134911 provided that any able-bodied person under the age of 60 was required to work and could be made to work for whoever required their services. The law exempted disabled people from the obligation to work, reflecting an expectation that people with disabilities cannot be productive workers. This legislation was followed by other legislation that divided 9 This discussion of historical attitudes toward people with disabilities is from Colin Barnes, Disabled People in Britain and Discrimination (Calgary: University of Calgary Press, 1991) at 12-27. 10 Ibid, at 12. " 23rd Ed. 3. 74 the world into those who could work (the able-bodied) and those who could not (the disabled), and relegated the latter to a position of dependency on the charity of others. These laws recognized the need for state intervention in the lives of people with disabilities. The laws did not, however, seek to segregate people with disabilities from the community; efforts were made to keep them within the local environment. The majority of resources were directed to those who were regarded as unable to work and were confined to their home, and funds were provided to families willing to accept responsibility for those considered incapable of working. 1 3 And, although attitudes towards disabled people in this period were often deprecatory, many people with disabilities were able to contribute to the labour market. In an economy based on agriculture and small-scale crafts organized around the family unit, most people with disabilities could contribute.14 Industrialization profoundly affected the position of people with disabilities. The demands of the workplace changed. Disabled people who had participated in the productive output of agriculture and small-scale industry tended to be excluded from factories.15 The speed of factory work, the enforced discipline, the time-keeping and production norms - all these were a highly unfavourable change from the 1 For example, in 1531, an English Act was passed "concerning the punishment of beggars and vagabonds": 22 Hen. 8, ch. 12 (1531). The statute provided for what amounted to the licensing of beggars. Local officials were required to search out beggars and to determine whether they should be permitted to live off the alms and charity of others. Only the "aged poor" and "impotent" were to be permitted to beg. The distinction between those who could work - the "sturdy" beggar - and those who could not - the "impotent" was carried into the Poor Laws which formed the basis of poor relief into the 19th century. For a thorough discussion of the Poor Laws, see William P. Quigley, "Five Hundred Years of English Poor Laws, 1349-1834: Regulating the Working and Nonworking Poor" (1996) 30 Akron L. Rev. 73 at 97. 1 3 Barnes, supra note 9 at 14. 1 4 Caroline Gooding, Disabling Laws, Enabling Acts (London; Pluto Press, 1994) at 13. 1 5 Michael Oliver, The Politics of Disablement (London: MacMillan Education Ltd, 1990) at 27 [Polities']. 75 slower, more self-determined and flexible methods of work into which many handicapped people had been integrated.16 The focus on the productivity of individual wage labourers was detrimental to disabled people, who tended to fall to the bottom of the labour market. They came to be viewed as a social and educational problem and, increasingly, were segregated in institutions.17 In the nineteenth century, segregation and institutionalization of the poor were useful tools by which the state could impose control. The institution was an important symbol: it represented the power of the state to remove from the community those who would not conform. Confinement in the workhouse was widely seen as an awful fate and served as an incentive to conform. However, there remained a need to distinguish those who would not conform from those who could not. As a result, through the eighteenth and nineteenth centuries, institutions became increasingly specialized. According to Oliver: These developments then, facilitated the segregation of disabled people, initially in workhouses and asylums, but gradually in more specialist establishments of one kind or another: The rise of specialist asylums signified an important shift in the way in which the poor, dependent, and deviant were contained ... Public workhouses, as opposed to domestic relief, were increasingly used for all those who could not or would not support themselves economically. In these, idiots, lunatics, the chronic sick, the old and vagrants were mixed up 1 Q with allegedly able-bodied unemployment. With specialized institutions came the need for categorization, not just between the "deserving" and "undeserving" poor, but among the classes of "deserving" poor. The Poor 1 6 J. Ryan & F. Thomas, The Politics of Mental Handicap (Hammondsworth: Penguin, 1980) at 101. 1 7 Oliver, Politics, supra note 15 at 28. 18 Ibid, at 33-34, citing Ryan & Thomas, supra note 16 at 100. See also Barnes, supra note 9 at 15-16. 76 Law Commission of 1832 stated that the workhouse population should be separated into groupings of able-bodied males, able-bodied females, children and the "aged and infirm", the latter two being the "deserving" poor.1 9 The Poor Law Amendment Act, 1834,20 refined the categorization into five groupings: children, the sick, the "insane", "defectives", and the "aged and infirm". The groupings also defined who was able-bodied: a person who did not fall into one of the groupings was by definition able-bodied.21 This process of exclusion coincided with the individualist ideology required by capitalism. According to Oliver, "[t]he requirements of the capitalist economy were for individuals to sell their labour in a free market and this necessitated a break from collectivist notions of work as the product of family and group involvement."22 Quoting Foucault, Oliver writes that capitalism required new ways of seeing or constructing ... problems of order and control. Within this set of problems, the "body" - the body of individuals and the body of populations - appears as the bearer of new variables, not merely between the scarce and the numerous, the submissive and the restive, rich and poor, healthy and sick, strong and weak, but also between the more or less utilizable, more or less amenable to profitable investment, those with greater or lesser prospects of survival, death and illness, and with more or less capacity for being usefully trained. This, then, is the ideological underpinning for the separation and specialization p rocesses w hich t ook p lace w ith t he r ise a nd d evelopment o f 9 A the institution.... Barnes, ibid, at 16-17. 2 0 4 & 5 Wm. 4, c. 76. 2 1 D. Stone, The Disabled State (London: Macmillan, 1985) at 40. 2 2 Oliver, Politics, supra note 15 at 44. 23 Ibid, at 45, citing M. Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972-1977 (Brighton: Wheatsheaf, 1980) at 172. 77 The construction of "able-bodied" and "able-minded" individuals was significant for disabled people. Prior to capitalism, individuals contributed to their family or community; contributions varied, but those who contributed less were not excluded. Under capitalism disability was constructed as individual pathology; "disabled people could not meet the demands of individual wage labour and so became controlled through exclusion."2 4 This exclusion was controlled through the process of categorization that is described above; a process that involved a focus on the body. The need to categorize coincided with the burgeoning of the medical profession,25 and contributed to the medicalization of disability -the understanding that disability was a physical abnormality and therefore within the appropriate domain of medical doctors. (b) Medicalization of Disability The medicalization of everyday life was not unique to people with disabilities. It affected the vast majority of society. Beginning in the nineteenth century and into the twentieth century, the medical profession acquired the authority to define and treat many conditions that had previously been viewed as having a moral or social origin. Oliver describes four theories to explain the phenomenon of medicalization: the enlightenment theory; the necessity theory; the action theory; and the power theory.26 The enlightenment theory sees medicalization as a largely benevolent and progressive force resulting from the rise of science and the development of humanitarian ideas. Oliver observes that, although the move from punishment or deprivation to treatment may appear progressive, the experience of the labelling process that accompanied medicalization was often profoundly negative. For 24 Ibid, at 47. 2 5 Barnes, supra note 9 at 17. 2 6 Oliver, Politics, supra note 15 at 49-51. 78 example, at the beginning of the twentieth century advances were made in understanding epilepsy. As a result, epileptics benefited from better treatment, but they were stigmatized by society. The necessity theory views medicalization as arising from the need to impose order on an industrialized society. This theory sees medicine as either an independent social and ideological force or an agent of state control. According to the action theory, medicalization is a struggle in which various groups seek to impose a set of meanings upon social phenomenon, for example by medicalizing alcoholism or demedicalizing homosexuality. The fourth theory, the power theory, explains the dominant position of the medical profession based on the superiority of medical knowledge over other forms of knowledge, the medical profession's success in organizing and gaining positions within bureaucracies, or the interconnections between the medical profession and the capitalist ruling class. Other theories attempt to explain why disability, in particular, was medicalized. Oliver describes two such theories. One suggests that the category of "disability" performed an important function in sorting people into work-based or needs-based systems. This was achieved by making disability a clinical concept and thereby assigning the allocation role to the medical profession. Another theory links medicalization of disability to the rise of the institution and segregation. Segregation fostered the growth of specialist professional workers such as nurses, physiotherapists, occupational therapists and social workers. The improvement of medical practices in hospitals led to the survival of greater numbers of people with disabilities and strengthened the connection between disabled people and institutions and facilitated the dominance of the medical profession.27 Ibid, at 51-52. 79 Whatever the reason for the medicalization of disability, there is no doubt that it happened. The involvement of doctors in activities such as diagnosis of impairment, stabilization following trauma, or treatment of disability-related illness is understandable and appropriate. However, doctors are involved in all aspects of the lives of people with disabilities. As Oliver observes, they are: ...involved in assessing driving ability, prescribing wheelchairs, determining the allocation of financial benefits, selecting educational provision and measuring work capabilities and potential; in none of these cases is it immediately obvious that medical training and qualifications make doctors the most appropriate persons to be involved.2 The medical model pervades all aspects of the lives of people with disabilities. The ideology2 9 that underpins the medical model has a profound effect on disability policy and on disabled people: it identifies them as the victims of tragic experience, whose impairments deprive them of the opportunity to participate fully in society. The rejection of this ideology by disability rights activists led to the rise of the disability rights movement and its conception of equality. (c) The Ideology of the Medical Model In the medical model, the focus is on the individual. 3 0 More particularly, it is on that person's bio-medical condition in comparison to some usually undefined able-bodied norm. Deviation from that norm indicates defect or abnormality. The aim of the medical model of u Ibid, at 48. 2 91 use "ideology" in the sense that it describes a self-fulfilling system of beliefs that, having emerged from a particular social and political order, reinforces that same order. 3 0 It is likely not a coincidence that the medical model, with its focus on the individual, came to dominate disability policy at the same time that liberalism, with its focus on the individual, became the dominant philosophical force. 80 disability is to identify an impairment, determine its cause, and provide treatment and rehabilitation to return the individual to as near "normal" function as possible. The focus on normality at its best will enable a person with a disability to return to a "normal" life within the community. Failure to reintegrate indicates a failure of the medical profession or the disabled individual to achieve a sufficient degree of normality. The ideology of normality can have a negative impact, not only on the individual with a disability, but on people with disabilities collectively. Victor Finkelstein, one of the early English leaders of the disability rights movement, describes the impact on him: The aim of returning the individual to normality is the central foundation stone upon which the whole rehabilitation machine is constructed. If, as happened tome following m y spinal i njury, t he d isability cannot bee ured, normative assumptions are not abandoned. On the contrary, they are re-formulated so that they not only dominate the treatment phase searching for a cure but also totally colour the helper's perception of the rest of that person's life. The rehabilitation aim now becomes to assist the individual to be as "normal as possible." The result, for me, was endless soul-destroying hours at Stoke Mandeville Hospital trying to approximate to able-bodied standards by "walking" with callipers and crutches ... Rehabilitation philosophy emphasises physical normality and, with this, the attainment of skills that allow the individual to approximate as closely as possible to able-bodied behaviour (e.g. only using wheelchair as a last resort, rather than seeing it as a disabled people's mobility aid like a pair of shoes is an able-bodied person's mobility aid).3 The medical model's focus on the impairment as a dysfunction or defect that is located in an individual also has a profound impact on disabled people as a group. First, by focusing on the impairment as the disabling condition, environmental factors may be ignored or minimized. This is illustrated by two sets of questions posed by Oliver, the first being actual 3 1 V. Finkelstein, "Changing in Thinking about Disability", unpublished paper (1988), cited in Oliver, Politics, supra note 15 at 54. 81 questions asked by the Office of Population Censuses and Surveys (OPCS) in Britain, the second being Oliver's reformulation: [OPCS Questions] Can you tell me what is wrong with you? What complaint causes your difficulty in holding, gripping or turning things? Are your difficulties in understanding people mainly due to a hearing problem? Do you have a scar, blemish or deformity which limits your daily activities? Does your health problem/disability prevent you from going out as often or as far as you would like? Does your health problem/disability make it difficult for you to travel by bus? Does your health problem/disability affect your work in any way at present? [Oliver's reformulation] Can you tell me what is wrong with society? What defects in the design of everyday equipment like jars, bottles and tins causes you difficulty in holding, gripping or turning them? Are your difficulties in understanding people mainly due to their inabilities to communicate with you? Do other people's reactions to any scar, blemish or deformity you may have, limit your daily activities? Are there any transport or financial problems which prevent you from going out as often or as far as you would like? Do poorly-designed buses make it difficult for someone with your health problem/disability to use them? Do you have problems at work because of the physical environment or the attitudes of others? Locating the problems associated with disability in the individual thus deflects discussion away from environmental causes. The focus on impairment ensures that disability remains a bio-medical issue, and consequently positions the medical profession as experts in disability policy. That is, i f the problem is a physical one, then its solution can be found through proper diagnosis and treatment - skills which fall squarely within the expertise of the medical Politics, ibid, at 7-8. 82 profession. On the other hand, doctors have no particular expertise in the elimination of social and environmental causes of disability. The medicalization of disability also has the effect of stigmatizing people with disabilities: it casts them in the "sick" role. A sick person is temporarily exempted from normal social obligations, without blame or obligation. In exchange, the sick person is expected to be a "good patient" by co-operating with the medical professionals and seeking to recover. According to Jerome Bickenbach: In general, then, the autonomy of people with disabilities is prejudiced by the sick role. The role demands that the individual surrender to professional direction in order to satisfy the condition of being a good patient, and devote his or her energies to the (possibly futile) goal of cure or recovery. Some people do not recover. In such cases either the exemption from blame will be lifted because the person is not trying hard enough to recover, or the exemption wil l become permanent, relieving the individual from normal obligations. In the former case, the person is viewed as lacking motivation. In either case the person becomes permanently "sick", excused from participation and dependent on others.34 As a result, people with permanent disabilities are cast in the role of incompetent. Moreover, it may be blameworthy incompetence. Bickenbach suggests that permanent disabilities represent a failure of medical technology. In the mythology of medicine, such failures must be explained, which is done by attributing the failure to the disabled individual. Jerome E. Bickenbach, Physical Disability and Social Policy (Toronto: University of Toronto Press, 1993) at 83 [Physical Disability]. 34 Ibid, at 81-82. 83 But a person with a disability is not necessarily sick. That person may not require any greater medical care than a person without a disability. As will be discussed in the following sections, people with disabilities do not seek to be excluded from normal obligations; on the contrary, they seek inclusion and opportunities to participate. When Chantal Peticlerc, a Canadian paralympic champion, was asked by a university professor if there is any chance she wil l recover, she responded: "I have nothing to recover from."3 5 Her response reflects a different view of disability - the social model. 3. The Social M o d e l (a) The Ideologies of the Social Model Harlan Hahn, an American political scientist, captures the essence of the social model of disability in the following passage: Whereas ... prior orientations regard disability principally as a personal misfortune or limitation, the sociopolitical view stresses the role of the environment in determining the meaning of this phenomenon. Thus, disability cannot be defined simply by functional capabilities or by occupational skills. A comprehensive understanding of disability requires an examination of the architectural, institutional, and attitudinal environment encountered by disabled persons. From this perspective, the primary problems confronting citizens with disabilities are bias, prejudice, segregation, and discrimination that can be eradicated through policies designed to guarantee them equal rights.36 In the medical model, disability is the result of functional limitations located in the disabled individual and the aim is to modify the individual so as to eliminate or ameliorate those limitations. In the social model, disability results when a person with an impairment interacts "A Remarkable Individual Shows how not to be Defined by Disability" The Globe and Mail (11 December 2004) A2. 3 6 Harlan Hahn, "Civil Rights for Disabled Americans: The Foundation of a Political Agenda" in Alan Gartner & Tom Joe, eds., Images of the Disabled, Disabling Images (New York: Praeger, 1987) 182. 84 with a hostile environment. The aim of the social model is to transform the environment so as to reduce its disabling effects. This focus on environmental change makes this model inherently political in that transformation will come through political action. The model's power comes from the interaction of the social science that underlies it with the political action of activists with disabilities.3 7 The social model emerged from the work of professionals in rehabilitation therapy who recognized that therapy is more effective when the environment in which the individual lives is considered in the therapeutic response to impairment. Beginning in the 1950s, the work of medical sociologists on the "sick role" influenced the development of the social model. The inappropriateness of the sick role for people with disabilities led some to investigate the way disabling phenomena such as the sick role were socially created. This led social scientists to consider the stigmas associated with disability. In the 1960s social psychologists began to research the social and psychological aspects of disability. They applied deviance theory which "holds that behaviour is deviant when it does not conform to social norms or expectations, and so it is behaviour that most people ... find offensive in some way or other."39 The research was founded on the principle that "handicapping is the product of a relationship between an impairment and the social environment."40 Much of the social scientific research was aimed at demonstrating that disability is a social i l l . However, this research maintained the assumption that the social problems associated with disability lies both in the individual and society. It is the interaction of the individual's deviance from a 3 7 For a discussion of the interaction of social science and political activism in creating this model, see Bickenbach, Physical Disability, supra note 33 at 134-181. 3 8 This discussion of the roots of the social model is based on Bickenbach, ibid at 141-149. 39 Ibid, at 142. 40 Ibid, at 145. 85 social norm and the social response to it - stigma - that creates the social problem. The presumption of interactionism that underlies much of the research into deviance and stigma inevitably re-focuses attention on the individual. That is, the stigmatizing attitudes that give rise to the disability are about something that is located in the stigmatized individual. As a result, this research is not sufficient to form the foundation of the social model, in which attention is focused on the environment as the cause of disability. Although the research provided empirical support for the model, politization of disablement created the model.4 1 The social model does not describe a single unified explanation of disability or justification for disability policy. As Bickenbach observes, the model "is still in the process of evolving, and there remains considerable controversy, even among its staunchest supporters, over the social-scientific basis for the model and the political agenda it mandates."42 Oliver distinguishes between social constructionists and the social creationists. The social constructionist sees the source of the problem as located in the minds of able-bodied people either individually or collectively. It is manifested through "hostile social attitudes and the enactment of social policies based on a tragic view of disability."43 Social creationists locate the problems in the institutionalized practices of society.44 In the former case, change must come from changing attitudes and through recognition in and enforcement of human rights legislation. In the latter, societal practices must be transformed. In either case, the goal is to 41 Ibid, at 149. 42 Ibid, at 158. 4 3 Oliver, Politics, supra note 15 at 82. 44 Ibid, at 83. 86 address disability policy through transformation of society rather than treatment of the disabled individual. The social-scientific research on deviance and stigma provided empirical support for the political argument of disabled activists that they were an oppressed minority. They represented "people with disabilities as a minority group, a marginalized population experiencing systemic discrimination."45 Bickenbach identifies some theoretical problems with this minority rights approach, which I will discuss in the next section; however, he recognizes its value in providing a method for determining which disadvantages arising from impairment are society's responsibility. Under the social model, disability is caused by the oppressive social environment. The true source of the problem is, therefore, systemic discrimination against people with disabilities. Disability is not a matter of bad luck; rather it is a social evil for which society bears responsibility.46 For Bickenbach, the model is both revolutionary and liberating. It was revolutionary in demanding a shift in perspective on disability to the point of view of disabled people themselves. In Bickenbach's words: "To be, or to be perceived to be, a handicapped person is to experience a social status, a role reinforced by the attitudes and beliefs of people as well as the practices and institutions of society."47 Without the perspective of disabled people that their disabilities are created or exacerbated by social factors, it is easy to assume that the world is immutable and that, therefore, i f a person with a disability is excluded, that person must accept the situation as it is. The social model challenges that assumption and broadens 4 5 Bickenbach, Physical Disability, supra note 33 at 152. 46 Ibid, at 153. 47 Ibid, at 158. 87 the possible response. The model liberated social policy and "jarred social policy analysts 48 out of well-worn paths and demanded imaginative solutions to handicap situations." The force of the social model comes from its ability to convey the lived experience and aspirations of people with disabilities and to propel their political activism.4 9 That activism was expressed through the disability rights movement, to which I now turn. (b) The Disability Rights Movement In the 1960s and 1970s, the disabled began to challenge the hegemony of the medical model. The disability rights movement, which was in large measure a reaction to the medical model, began when people with disabilities began to emerge from their exclusion to form groups of people with similar disabilities and then across disability types. In the evolution of the disability community, exclusion came to play a positive role. Rather than being a source of negative self-images and a barrier to interaction, the common experience of exclusion became a catalyst for shared identity and a target for collective action. Following in the wake of the black power, feminist and other social movements of the 1960s, which also stressed a positive self-image rooted i n the collective identity o f an excluded group demanding greater participation, increasing numbers of disabled people embraced activism and the creation of community.50 ™Ibid. at 159. 4 91 do not mean to suggest that the social model is accepted by all people with disabilities as an expression of their lived experience. Some say that, by focusing on the social causes of disability, the model fails to connect to the experience of impairment; some restrictions caused by impairment cannot be removed by applying the social model. Others argue that the model fails to address the physical and psychological pain that is often associated with impairment. Oliver acknowledges these criticisms by returning to the political purposes of the model. Supporters of the social model insisted that there is no causal link between impairment and disability in order to prevent opponents from using such links as evidence that disability is really about physical limitation. For a discussion of the critiques of the social model, see Michael Oliver, Understanding Disability: From Theory to Practice (New York: Palgrave, 1996). 5 0 Richard K. Scotch, From Good Will to Civil Rights: Transforming Federal Disability Policy (Philadelphia: Temple University Press, 1984) at 6. 8 8 The movement sought greater inclusion of people with disabilities in mainstream society by empowering people with disabilities and re-casting their inequalities as an issue of civil rights.51 Empowerment of people with disabilities began with the development of the independent living concept in the 1960s. The concept entailed people with disabilities living their day-to-day lives in the community rather than in institutions and taking control of the decisions affecting their lives. The start of the movement can be pinpointed in 1962, when Edward Roberts, a student in an iron lung, was admitted to the University of California at Berkeley.5 2 The student dormitories were inaccessible; however, he lived in the university hospital, where he was assisted by his older brother and another student. His presence led other students with disabilities to enrol. They formed "The Rolling Quads", a political advocacy group, and helped initiate the Physically Disabled Students' Program. In 1972, they formed the Centre for Independent Living, with Roberts as the first executive director. The independent living movement spread rapidly in the United States and became a powerful social force. Individual centres for independent living joined Statewide Independent Living Councils, which in turn formed the National Council on Independent Living. At the local level, the centres provided a variety of direct services for their members, such as housing referral, peer counselling, transportation and wheelchair repair, and provided advocacy on 5 1 For a very detailed discussion and analysis of the American disability rights movement, see Duane F. Stroman, The Disability Rights Movement: From Deinstitutionalization to Self-Determination (Lanham, Maryland: University Press of America, 2003). The disability rights movement in Canada is discussed briefly in Bickenbach, Physical Disability, supra note 33 at 149-152; Oliver, Politics, supra note 15 discusses the movement in Britain at 112-131. 5 2 Stroman, ibid, at 201. 89 local and state issues. The umbrella organizations provided advocacy at the state and national levels. The independent living movement empowered people with disabilities and succeeded in wresting control of many aspects of their daily lives away from the medical profession. The movement also sought to re-frame disability as a rights issue. The National Council on Independent Living states that it "is a membership organization that advances the independent living philosophy and advocates for the human rights of, and services for, people with disabilities to further their full integration and participation in society."53 In Canada, the independent living movement was part of what became known as the consumer movement. Disabled activists drew inspiration from the consumer activism of Ralph Nader. They saw and described themselves as consumers of government services and sought input into and control over the delivery of those services. They focused on empowering people with disabilities by creating organizations that were controlled by people with disabilities and either provided direct services to or advocacy for members. In 1975 the Coalition of Provincial Organizations of the Handicapped (COPOH) was organized as an umbrella organization to co-ordinate the efforts of provincial consumer-led disability advocacy groups. COPOH has changed its name to the Council of Canadians with Disabilities (CCD) but its vision remains the same: Ibid, at 202, quoting the National Council on Independent Living mission statement. 90 C C D believes in: • Citizenship: Persons with disabilities hold the same rights and responsibilities as other Canadians. Barriers to our participation discriminate against us and must be removed. • Self Determination: As full citizens, we assert our right to direct our own lives and make our own decisions. • Consumer Control: We must be centrally involved in the decision making processes that affect our lives. • Equality: The Charter of Rights and Freedoms guarantees equal benefit and protection of the law and prohibits discrimination based on physical or mental disability. A l l other legislation must be brought into line with the Charter.54 The independent living movement was not the only source of disability activism.5 3 In the United States, powerful groups such as the Paralyzed Veterans of America and the American Coalition of Citizens with Disabilities (ACCD) were influenced by the civil rights movement and used it as a model for understanding the position of disabled people, and they adopted tactics from that struggle, such as sit-ins, to advance their message. The Vietnam War was also important: activists were influenced by the anti-war movement and the war produced disabled veterans whose message was compelling. A watershed for Americans with disabilities was passage of the Rehabilitation Act 1973.30 The aim of the legislation was to improve rehabilitation services by shifting the emphasis from vocational training to independent living. Initially, the legislation did not include any anti-discrimination provision. However, in committee, sections were added that forbade discrimination on the basis of disability in any program receiving federal funding (s.504), 5 4 Council of Canadians with Disabilities, "About Us", online at <> .(accessed March 17, 2005) 5 5 For the discussion that follows, I rely on primarily on Gooding, supra note 14 at 20-24. 5 6 29 U.S.C. §701. 91 that required the federal government to cease discriminating and to adopt affirmative action programs for disabled persons in its employment practices (s. 501), and that imposed the 5 7 same requirements on federal contractors (s. 503). This was the first anti-discrimination legislation for people with disabilities. Section 504 was directly modelled on Title VI of the Civil Rights Act 1964,58 thereby linking disability to minority groups protected by that Act. The legislation also served to link disability activists in a common cause. The common experience of discrimination served to unify groups that had historically organized around single medical conditions (another legacy of the medical model). The A C C D was an umbrella organization of more than 80 such organizations. Under the Rehabilitation Act, federal policy towards the disabled was not defined in terms of allocation of finite resources that pitted one group against another. Rather, it was defined in terms of rights, which allowed the groups to advocate for the rights of other groups without financial sacrifice.59 The Rehabilitation Act identified people with disabilities as a minority group entitled to civil rights protection. Amendments to the Act in 197460 redefined "disability" in a way that marked a break from the medical model to the social model. The Act's original definition of "handicap" was based on a conventional medical model. It defined a handicapped person as "Any individual who (A) has a physical or mental disability which for such individual 5 7 Although initially resisted by the Nixon Whitehouse, the Act was passed following demonstrations by the President's Committee on the Employment of the Handicapped in 1972 and by the grassroots disability rights group Disabled in Action in 1973: Jaqueline Vaughn Switzer, Disabled Rights: American Disability Policy and the Fight for Equality (Washington: Georgetown University Press, 2003) at 59. 5 8 42 U.S.C. §2000d. 5 9 Gooding, supra note 14 at 25. 60 Rehabilitation Act Amendments of 1974, Public Law 93-516, 88 Stat. 1617. 92 constitutes or results in a substantial handicap to employment and (B) can reasonably be expected to benefit in terms of employability from vocational rehabilitation services."61 Disability was defined in terms of the individual's impaired capacity for employment. The Act was amended the following year to define a handicapped person as anyone "1) with a physical or mental impairment which substantially limited one or more life activity, 2) with a record of such impairment or 3) regarded as having such an impairment."62 This new definition recognized that disability could be caused by the perception - or prejudice - of others and that disability is defined not by the presence of an impairment, but by the relationship of that impairment to concrete activities of daily living. In Gooding's words: This definition establishes prejudice as the defining fact of disability and thus marks the break from the medical to the social model for disability, by locating the "handicap" in social perceptions and in the restrictions imposed by concrete living situations, rather than listing medical conditions which come into the category of "disabled".63 The Supreme Court of the United States recognized that this was the intent of the definition in School Board of Nassau County v. Arline.64 The Court accepted that cosmetic disfigurement is a disability because other people's fears and prejudices irrationally limit the opportunities of the person with the disfigurement. Writing for the majority, Justice Brennan states: Congress was as concerned about the effect of an impairment on others as it was about its effect on the individual ... The Senate Report provides as an example of a person who would be covered . . . " a person with some kind of visible physical impairment, which in fact does not substantially limit that person's functioning." Such an impairment might not diminish a person's 6 1 29 U.S.C. 706(7)(B). 6 2 Gooding, supra note 14 at 58. 63 Ibid, at 59. 6 4 480 U.S. 273 (1987). 93 physical or mental capabilities, but could nevertheless substantially limit that person's ability to work as a result of the negative reactions of others to the impairment.65 The social model is reflected in the recognition of the handicapping effect of society's reaction to an impairment. The Rehabilitation Act contained other provisions that reflected the social model's perspective that the environment creates handicaps: first, s. 504 spoke of the "exclusion" of people with disabilities; second, it required the federal government and contractors to undertake affirmative action programs to employ people with disabilities; and third, it required the removal of architectural and transportation barriers. The focus of these provisions is on changing the environment rather than the individual. 6 6 The social unrest in Canada was more muted than in the United States, and disability activists were not propelled by the large numbers of disabled Vietnam veterans. Nevertheless, activists in Canada lobbied vigorously for equal rights protection. They achieved some success when, in 1976, New Brunswick became the first Canadian province to include "disability" or "handicap" as a prohibited ground of discrimination. However, for Canadian activists the key victory was not anti-discrimination legislation. Although inclusion of "disability" in anti-discrimination was significant, it resulted from local activism and did not generate much national attention. Two subsequent events, a Parliamentary report and constitutional recognition of the rights of people with disabilities, served to unify Canadians with disabilities. 65 Ibid, at 282-283 [citations omitted]. 6 6 Bickenbach, Physical Disability, supra note 33 at 166. 67 Human Rights Code, S.N.B. 1976 c. 31. That same year a Board of Inquiry in B.C. in effect read "physically handicapped persons" into the categories of persons protected by the employment section of the B.C. human rights legislation: Jefferson v. British Columbia Ferries Service (unreported, 29 September 1976, B.C. Bd Inq.). 94 In response to the United Nation's declaration of the year 1981 as the "International Year of Disabled Persons", the federal government appointed the Special Committee on the Disabled and Handicapped. People with disabilities and their advocates took the opportunity to present their vision of disability: they sought full participation in all aspects of mainstream society, and saw environmental barriers, whether attitudinal or structural, as the major obstacles to that participation. The Committee received over 600 submissions,68 and the voices of disabled people were clearly heard. In the introduction to its report to Parliament, the Committee wrote: The purpose of this report is to identify the key obstacles faced by disabled persons in Canada, and to outline practical actions which will help to overcome these obstacles. The recommendations made by the Special Committee call for legislative, fiscal and organizational initiatives on the part of the F ederal Government. Some of these new policies and practices will have immediate impact, while others may take several years before any real progress can be seen. Regardless of the time that will be required, the community of disabled persons in Canada will persist with their demands for just and cooperative treatment from the rest of society. They have shown remarkable self-determination, both collectively and as individuals. Disabled persons are not asking the Federal Government for a hand out, but for a hand up, so that they can build for themselves lives of independent choice and action. Ottawa must do certain things before this can happen. Disabled persons will do the rest.69 The report, which was released in February 1981, remains a remarkable document for the breadth of its vision. It contains 130 recommendations cutting across all aspects of everyday life in Canadian society. It is also remarkable for its unflinching adoption of the social model of disability. It is evident in the passage quoted above, with its emphasis on the identification and elimination of environmental obstacles and the desirability of independence and self-determination for people with disabilities. It is also reflected in the structure and content of Canada, Parliamentary Special Committee on the Disabled and the Handicapped, Obstacles (1981) at 147. Ibid, at 1. 95 the report. Its first chapter addresses human and civil rights and identifies the need for improved anti-discrimination legislation as the most repeated request heard by the Committee. Other chapters contain recommendations addressing a wide variety of issues including employment, independent living, consumerism, and changing attitudes. There is no chapter dealing with health or rehabilitation. There is a chapter on institutional living but it contains only two recommendations: that the federal government develop guidelines for the standard of care in institutions; and that the federal government study the cost-effectiveness of de-mstitutionalization. At the same time as the Special Committee on the Disabled was completing its report, another Special Committee, the Special Joint Committee of the House of Commons and of the Senate (the "Hays-Joyal Committee"), was convened to receive public input on the draft provisions of the Charter of Rights and Freedoms11 This committee, and the provisions it was considering, became the focus of intensive activism by disabled advocates.72 When s. 15 of the Charter was initially presented to Parliament in October 1980, it prohibited discrimination because of "race, national or ethnic origin, colour, religion, age or sex"; it did not include "disability" or "handicap".73 The deliberate omission of disability drew strong criticism, and the claim for inclusion was advanced in three forums 70Ibid, at 111. 7 1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c l 1 [Charter]. 7 2 Those efforts are described in M. David Lepofsky & Jerome E. Bickenbach, "Equality rights and the Physically handicapped" in Anne E. Bayefsky & Mary Eberts, eds., Equality Rights and the Canadian Charter of Rights and Freedoms (Totonto:Carswell, 1985); Yvonne Peters, "Twenty Years of Litigating for Disability Equality Rights: Has it Made a Difference?", online at the CCD website <> (accessed March 17, 2005); and William Boyce et al., A Seat at the Table: Persons with Disabilities and Policy Making (Montreal: McGill-Queen's University Press, 2001) at 49-65. 7 3 Lepofsky & Bickenbach, Ibid, at 332. 96 concurrently. First, it was advanced in public debate in public forums, the media, and in letters and petitions to legislators. Second, as discussed above, witnesses to the Special Committee on the Disabled frequently pressed for expanded human rights protection. Third, advocates made their case in formal presentations to the Hays-Joyal Committee. The three principle advocates were COPOH, the Canadian Association for the Mentally Retarded and the Canadian National Institute for the Blind. On January 12, 1981, the Justice Minister, Jean Chretien, introduced amendments to the provisions; however, he specifically declined to approve inclusion of disability. Under much pressure from Committee members, including those of his own party, the government finally accepted an amendment on January 28, 1981 to include "mental or physical disability" in s. 15 of the Charter75 Lepofsky and Bickenbach identify a number of factors that led to the amendment. One factor was the strong advocacy by the Special Committee on the Disabled, which as we have seen, was strongly influenced by the vision of equality advanced by advocates with disabilities. It formally resolved that: "If Parliament decides to enshrine human rights in the patriated Constitution, the Committee feels that complete and equal protection should be extended to persons suffering from mental and physical handicap."76 The legal impact of this constitutional guarantee was not immediate. Section 15 was not to come into effect until 1985. However, its impact on the disability rights movement was significant. It brought together in common cause individuals and organizations with a wide diversity of disabilities. They succeeded in gaining recognition that disability-based discrimination ought to receive protection from discrimination in the same manner as other 74 Ibid, at 333. 75 Ibid, at 335. 76 Ibid, at 336. 97 historically disadvantaged minority groups. With recognition of disability in the Charter, and the powerful recommendations of the Obstacles report, the disability rights movement had achieved recognition that Canadians, as a nation, accepted a vision of society that included people with disabilities and that was committed to the elimination of barriers to that participation that were caused by discrimination. The social model of disability had prevailed, at least in theory. In practice, people with disabilities continue to face many barriers to equality. Although the disability rights movement has achieved significant victories the fight is not over. For example, disabled activists in Ontario have for more than a decade been fighting for effective provincial legislation to create a barrier-free province for people with disabilities.77 In response to that activism, the Ontario government introduced the Accessibility for Ontarians with Disabilities 78 • Act, 2005, which incorporates many of the accessibility goals of the disability rights movement. In challenging the assumptions of the medical model, the independent living and consumer movements liberated people with disabilities by empowering them. They found their voice and used it to take greater control of their lives. Part of the strategy was to work through the established systems to obtain greater rights to self-determination. Activists also sought, and obtained, legislative reform to give them enhanced rights within the system. The movement was also counter-hegemonic, and therefore more revolutionary than mere agitation for 7 7 For an interesting description of the long battle for this legislation from one of its leading participants, see M. David Lepofsky, "The Long, Arduous Road to a Barrier-Free Ontario for People with Disabilities: The History of the Ontarians with Disabilities Act - The First Chapter" (2004) 15 Nat'l J. Const. L. 125. 7 8 S.O 2005, c. 11. 98 legislative reform. Disabled activists sought to change the dominant framework of society, not merely to improve their position within it. Their effort to take control of their lives away from medical professionals was like rebellion or secession.79 Their tactics of protests and sit-ins were similar to other counter-hegemonic movements of the time. Whatever the tactics or strategies, whether framed as an issue of individual rights or systemic discrimination, the search for equality was, and is, central in the disability rights discourse. In the following section, I consider disability as an issue of equality. 4. Disabi l i ty and Equal i ty (a) Disability Rights and Equality Theory Equality is central to the discussion of disability rights. Disability rights theorists draw heavily on liberal and feminist conceptions of equality. However, disability does not figure prominently in either liberal or feminist literature. As discussed in Chapter II, there is no single conception of liberal equality. Liberals are, however, unified in their focus on individuals. For liberal philosophers, disability is addressed as a problem that tests the limits of theoretical positions. It is generally accepted that justice requires that those who are disadvantaged due to a natural impairment should receive some form of redress, compensation or redistribution. But how are those who are disadvantaged by a disability to be distinguished from those who are disadvantaged by lack of talent? And i f some form of redistribution is appropriate, what is the purpose of the redistribution: to eliminate the disadvantage, or to equalize the well-being? For disability 7 9 Bickenbach, Physical Disability, supra note 33 at 171. 99 rights theorists, the liberal answers have not been particularly helpful. As David Wasserman, an American lawyer and philosopher observes: "The liberal philosophers who have addressed disability have come up with proposals that bear a depressing similarity to the status quo." Liberal conceptions of equality focus on the individual. It is therefore not surprising that liberal philosophers see disability as a natural disadvantage. They tend to locate the source of disadvantage in the person with a disability. The result bears a striking resemblance to the medical model. Given its focus on disability as a disadvantage located within an individual, it is also not surprising that those few liberal equality theorists who have directly addressed disability have often considered it as an issue of health policy. As discussed in Chapter II, much of the recent debate on equality is a response to Rawls' influential work. In the Rawlsian framework equal opportunity has priority over the distribution of primary goods.81 Based on this framework, philosopher Norman Daniels argues that health care needs should be given priority as a means to achieve fair equality of opportunity. For Daniels, the goal of health care is to restore or maintain normal functioning, and he argues that "we have special claims on others when our functioning falls short of the normal range."82 Such a special claim does not arise from deficits in skills or talents i f they fall within the normal range. Abnormal functioning creates a special claim because it restricts equality of opportunity. David Wasserman, "Distributive Justice" in Anita Silvers, David Wasserman & Mary B. Mahowald, Disability, Difference, Discrimination: Perspectives on Justice in Bioethics and Public Policy (Lanham, Maryland: Rowman & Littlefield Publishers, 1998) 147 at 172. 8 1 For the following analysis of Daniels' and Pogge's application of the Rawlsian framework, I rely on Wasserman, Ibid, at 152-172. 8 2 Norman Daniels, "Equality of What: Welfare, Resources, or Capabilities?" (1990) 50 Philosophy and Phenomenological Research, suppl. 283, cited in Wasserman, Ibid, at 153. 100 Wasserman notes a number of problems with Daniels' analysis, including the problem of finding a principled basis for distinguishing between deficits in functioning and deficits in abilities. That is, "it is not obvious that those with impairments are denied fair equality of opportunity by the failure to restore them to normal functioning any more than are those with mediocre talents by the failure to improve their level of performance."83 Moreover, applying the Rawlsian framework, under Daniels' analysis, society could not devote any resources to ameliorate wealth or income disparities until it had done everything possible to restore normal functioning to those lacking it. This model is not limited to the restoration of normal functioning through health care; education, for example, could also be effective. However, in that context too, the model raises questions of fairness. A student with little talent for math will get low grades, so too will a student with a math learning disability: Under Daniels' model, the student with no talent will get no resources until everything that can be done is done to restore the student with a learning disability to normal functioning. As Wasserman notes, this model "may demand too much for too few" and may obscure other issues of social justice.8 4 From a disability rights perspective, this focus on normalization, particularly through health expenditures, fits comfortably within the medical model: it is the individual who must be restored to fit the able-bodied norms of society. Thomas Pogge argues that Rawls does not require that society compensate for natural inequalities by providing greater opportunities and resources. Rather, Rawls requires only that society mitigate natural inequalities by ensuring that society does not adopt a scheme of cooperation that compounds the inequalities. Under Pogge's model, health protection 8 3 Wasserman, supra note 80 at 154. MIbid. at 158. 101 resources must be distributed roughly equally. Poor people must have roughly the same access to health care as those of average means. Comparisons between people with disabilities and the able-bodied would be irrelevant: i f poor people with disabilities received the same resources as disabled people with average means, there is no social injustice.85 Even under the medical model, Pogge's analysis offers little for disability rights. Society meets its equality obligations as long as poor people with disabilities receive no fewer resources than the middle class. Such a formal conception of equality neither addresses the inequalities intrinsic in treating people with disabilities the same as the able-bodied nor recognizes societal obligation for the creation of that disability. Ronald Dworkin comes closer to a social construction of disability. As Bickenbach observes, Dworkin is one of the few theorists to recognize the interactional nature of disabilities.86 For Dworkin, disabilities (or handicaps) are part of a continuum with abilities (or talents). He states: "Though skills are different from handicaps, the difference can be understood as one of degree: we may say that someone who cannot play basketball like Wilt Chamberlain, paint like Piero, or make money like Geneen, suffers from an (especially 87 common) handicap." Dworkin also rejects normalization as an appropriate goal, in part because of the difficulty in establishing a "normal" standard, but also because there is no amount of compensation that could make a person with a disability equal in physical or mental resources with someone taken to be "normal" in these ways. Further, physical or mental "powers" are not resources for the theory of equality in the sense that material 85 Ibid. 158-160, discussing Thomas W. Pogge, Realizing Rawls (Ithaca: Cornell University Press, 1989). 8 6 Bickenbach, Physical Disability, supra note 33 at 264. 8 7 Ronald Dworkin, "What is Equality? Part 2: Equality of Resources" (1981) 10 Philosophy and Public Affairs 283 at 314-315, reprinted in Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge: Harvard University Press, 2000) at 92. 102 resources are; they cannot be manipulated or transferred.88 That is, physical or mental powers cannot be taken from one person and given to another to equalize their distribution. This argument may suggest why Dworkin's theory is a thin one for people with disabilities. For Dworkin, disabilities are "features of body or mind or personality that provide ... RQ impediments to a [successful life]." Although he sees disabilities as part of a continuum of abilities that are affected by their context, he locates the problem to be remedied in the individual. Since the disabilities relate to physical, non-transferable resources within the individual, his only solution is to provide compensation through a hypothetical compensation scheme.90 He does not suggest any redistribution of resources to make society less disabling. Despite the failures (from a disability rights perspective) of liberal theorists in addressing disability as an issue of equality, disability rights theory is often informed by liberal conceptions of equality. Harlan Hahn, for example, adopts a liberal individual rights approach to equality. While identifying the architectural, institutional and cultural environments as determining the meaning of disability, he argues that bias and prejudice underlie those environmental problems. He states: [Governments bear an inescapable responsibility for those facets of the environment that have a discriminatory effect on persons with disabilities. Furthermore, evidence of widespread aversion to the presence of disabled individuals cannot be separated from the values and feelings that have contributed to the formation of social policy. Hence, i f institutions allow the nondisabled majority to avoid and exclude people with disabilities, that result cannot be attributed to mere happenstance. This realization also imposes a Dworkin, Sovereign Virtue, ibid., at 80. i 9 Ibid., at 82. Dworkin observes that it is possible to conceive of a single insurance scheme to address handicaps and skills as part of a continuum. However, a person would normally know their skills when purchasing insurance, whereas handicaps are future contingencies. He therefore devises two hypothetical insurance schemes: one for handicaps, the other for skills: Ibid, at 92-97. 103 corresponding duty on policymakers to protect the civil rights of disabled citizens by eliminating this form of segregation and inequality.91 In essence, Hahn's view is that inequality for people with disabilities results, directly or indirectly, from bias and prejudice towards them from the non-disabled community. It reflects a formal conception of equality, albeit a complex one. As discussed in Chapter II, in formal equality all people are treated alike. In Hahn's view, the negative attitudes of society lead to social policy that treats people with disabilities differently than the non-disabled. Similarly Anita Silvers treats equality for people with disabilities as an issue of formal justice conceived broadly. She argues that formal justice requires equality of treatment, not treatment that is the same. Pursuing formal equality requires carefully distinguishing descriptions of how people are treated that reveal the scope of the treatment's instrumentality from other levels of description. To assess its efficacy, the scope of instrumentality permitted by the purportedly equalizing treatment must be known. This is because physical, sensory, and cognitive impairments reduce one's instrumental options. So treating people similarly, will not be treating them equally in cases in which the actions instrumental to pursuing opportunity are so narrowly or rigidly constrained as to exclude people with (certain) 92 impairments. For example, a program that can only be accessed by a flight of stairs is not treating people in wheelchairs equally to those who are able to climb stairs. Formal equality requires equal access to the program, not equal access to the stairs. Further, formal justice requires that "instrumentally effective accommodation" be provided where it is necessary to provide equal 9 1 Hahn, supra note 36 at 184-185. 92 Anita Silvers, "Formal Justice" in Anita Silvers, David Wasserman & Mary B. Mahowald, Disability, Difference, Discrimination: Perspectives on Justice in Bioethics and Public Policy (Lanham, Maryland: Rowman & Littlefield Publishers, 1998) 13 at 126-127. 104 access. Failure to do so "illegitimately impinges on the negative freedom of disabled program users and workers."93 Silvers is careful to distinguish the equal treatment required by formal justice from the "special benefits" that are required under an equality of results model. In her view, "Claims of people with disabilities to equalized opportunity and to special benefits clash because they leave the public conflicted as to whether to interact with impaired individuals as equals or to focus on their having 'special' needs."94 According to Silvers, modelling disability on civil rights presumes that, i f given meaningful access to opportunity, people with impairments can flourish without special care.95 Silvers recognizes that some people have impairments that are so severe some distributive scheme is permissible but insists that such distributive "schemes neither do justice to people with disabilities nor equalize them."96 Silvers thus appears to relegate people with very severe disabilities to some lesser form of equality. 93 Ibid, at 127. This is similar to the Aristotelian notion that formal equality requires not only that likes be treated alike but that unalikes be treated differently. Silvers' view could also be described as an adverse effects analysis. As I discuss more fully in the next chapter, at note 112 and accompanying text, her focus on formal equality may reflect peculiarities of the American context that do not apply in Canada. 94 Ibid, at 133. 95 Ibid, at 135. 96 Ibid, at 144. The distinction Silvers makes between equal treatment and special benefits may help explain the outcomes of two cases decided by the Supreme Court of Canada. In Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, the plaintiffs sought equal access to medical treatment through the provision of sign language interpreters. They were seeking the same medical treatment as other patients. The Court upheld their claim. In Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, the plaintiffs were seeking funding for treatment for their autistic child that was not available to others. The Court denied the application. It is possible to characterize the goal of the plaintiffs in Auton as seeking substantive equality for their child, not a "special benefit", but the Court does not appear to have seen it that way. A recent Ontario decision found that the absence of funding for this treatment violated their rights to freedom from discrimination on the basis of disability: Wynberg v. Ontario, [2005] O.J. No. 1228 (QL) (Ont. Sup. Ct. Jus.). In Auton, the issue was addressed as discrimination in provision of health services; in Wynberg it was found to be discrimination in education programs and services. 105 Mary Mahowald, a professor of medicine who writes on health care and feminist issues, sees 97 Silvers as exemplifying a liberal conception of equality, leaning toward the libertarian side. Mahowald offers what she describes as a more egalitarian feminist perspective: Like most feminists, I resist a conception of individual autonomy that ignores the context, which often compromises that autonomy. Until and unless the compromising influences are removed, equal liberty for individuals is not possible. These influences include all of the social biases and empirical obstacles placed in the path of people who belong to nondominant groups; they also include covert obstacles such as internalized biases, psychological pressures, and reduced expectations on the part of the nondominant persons themselves. Material equality, defined as the removal of both internal and external obstacles to autonomy, is thus a prerequisite to equal liberty.9 8 This egalitarian feminist analysis fits well with the social model of disability advanced by disability rights theorists. The focus on removal of "social biases and empirical obstacles" to achieve equality is similar to the aim of Hahn and others to remove the barriers created by the bias and prejudice of the dominant group (the able-bodied). Although Hahn does not identify a need to remove obstacles internal to the nondominant (disabled) group, the focus on empowerment through independent living may reflect a similar goal. Michael Oliver's analysis is even closer to Mahowald's position. Applying an analysis of oppression, he observes that the "disabled identity" is formed through a combination of internal psychological processes and external factors.99 And for him, "disability is not merely socially constructed, but socially created as a form of institutionalised social oppression like institutionalised racism or sexism." 1 0 0 He argues that the disability movement, as part of new 9 7 Mary B. Mahowald, "Response" in Anita Silvers, David Wasserman & Mary B. Mahowald, Disability, Difference, Discrimination: Perspectives on Justice in Bioethics and Public Policy (Lanham, Maryland: Rowman & Littlefield Publishers, 1998) at 290. 98 Ibid, at 290-291. 9 9 Oliver, Politics, supra note 15 at 77. m Ibid, at 121. 106 counter-hegemonic movements, has a central role to play in eradicating the social restrictions and oppressions associated with disability.1 0 1 Susan Wendell, after noting the absence of perspectives on disability in feminist theory, 102 argues for a feminist theory of disability. She states: Disabled women struggle with both the oppressions of being women in male-dominated societies and the oppressions of being disabled in societies dominated by the able-bodied. They are bringing the knowledge and concerns of women with disabilities into feminism and feminist perspectives into the disability rights movement. To build a feminist theory of disability that takes adequate account of our differences, we will need to know how experiences of disability and the social oppression of the disabled interact with sexism, racism and class oppression.... Unfortunately, feminist perspectives on disability are not yet widely discussed in feminist theory, nor have the insights offered by women writing about disability been integrated into feminist theorizing about the body. M y purpose in writing this essay is to persuade feminist theorists, especially feminist philosophers, to turn more attention to constructing a theory of disability and to integrating the experiences and knowledge of disabled people into feminist theory as a whole. 1 0 3 She observes that many of the issues with which feminists grapple are the same as those facing people with disabilities: whether to focus on sameness or difference; whether to emphasize independence or to question the de-valuing of dependence and vulnerability; whether to aim for full integration and equal power or to preserve some degree of separate culture.1 0 4 Applying a feminist perspective, Wendell concludes, like Oliver, that a theory of disability must address it as a phenomenon of oppression. However, unlike Oliver, she also 101 Ibid, at 130. 1 0 2 Susan Wendell, "Toward a Feminist Theory of Disability" in Debra Shogan (ed.), A Reader in Feminist Ethics (Toronto: Canadian Scholars' Press, 1993) at 223. 103 Ibid., at 224-225. 104 Ibid, at 224. 107 sees a need to consider the relationship of disabled people to their own bodies: "We need a theory of disability for the liberation of both disabled and able-bodied people, since the theory of disability is also the theory of oppression of the body by a society and its culture."1 0 5 However, the fit between disability and feminism is not always a comfortable one. As Oliver notes, sometimes the oppressed can be oppressive.106 Anita Silvers observed an increasing insistence by women with disabilities that they were being marginalized in the women's movement in a manner that was similar to their marginalization by patriarchal society; that is, women's rights groups were reluctant to include women with disabilities or recognize their issues as women's issues. 1 0 7 Silvers followed Wendell's lead by attempting to consider the intersection of disability and feminism. Her project was to persuade feminist theorists to adjust their theory to incorporate a disability rights perspective and, in so doing, further feminist liberatory theory.108 Whether or not feminist theory finds a place for disability, feminist theory will continue to find a place in disability theory. In addition to the influence of feminist theory in the writing of disability theorists such as Oliver, feminist theories of equality are being argued by legal advocates injudicial proceedings involving disability. In Eldridge109 the Supreme Court of Canada considered, for the first time, the meaning of the prohibition of disability-based 105 Ibid, at 242. 1 0 6 Oliver, Politics, supra note 15 at 76. 1 0 7 Anita Silvers, "Reprising Women's Disability: Feminist Identity Strategy and Disability Rights" (1998) 13 Berkeley Women's L.J. 81 at 95. 108 Ibid, at 81-82. 109 Eldridge, supra note 96. 108 discrimination in s. 15 of the Charter. The Disabled Women's Network (DaWN) submitted a factum with a feminist perspective that is also consistent with a disability rights analysis: Equality under s. 15 entails much more than simply "accommodating" persons with disabilities into existing societal norms and structures leaving unscrutinized those norms and structures themselves. Substantive equality challenges the very existence of mainstream structural and institutional barriers, including the socially constructed notions of disability which inform them. For persons with disabilities, equality means the right to participate in an inclusive society. It does not mean merely the right to participate in a mainstream society through the adoption of non-disabled norms. ... The "duty to accommodate" is antithetical to the meaning of substantive equality as its interpretation proceeds from and leaves intact the mainstream perspective, only making concessions to the disadvantaged group. Its frame of reference falls far short of full inclusion. In order to achieve what s. 15 demands, equality must not be denied by the perspectives, experiences, wants or desires of those privileged groups in society precisely because it is those groups who are least well situated to recognize and eliminate the discriminatory undertones of their own thoughts and actions.110 (b) Minority Rights Analysis Whether based on liberal or feminist principles of equality, the dominant disability rights model is based on what is commonly referred to as a minority group or minority rights analysis.111 Under this model, people with disabilities are viewed as a minority that has been disadvantaged by discriminatory practices. That is, as a group, people with disabilities are the victims of practices that, either consciously or unconsciously, deny them opportunities available to other members of society. Those practices cause them to be isolated and excluded from full participation in society. Under this model, political strategy is based on an assumption that elimination of the discriminatory practices will enable participation by 1 1 0 Cited in Marcia H. Rioux & Catherine L. Frazee, "The Canadian Framework for Disability Equality Rights" in M. Jones & L. A. Basser Marks, eds., Disability, Divers-Ability and Legal Change (London: Kluwer Law International, 1999) 171 at 178-179. 1 1 1 For an extensive discussion of this model see Bickenbach, Physical Disability, supra note 33 at 152-158. 109 people with disabilities. Disability activists have therefore focused much of their energy on the enactment of effective anti-discrimination legislation. For American activists those efforts led to passage of the Americans with Disabilities Act.n2 The preamble to the Act captures the ideology of the minority group model: Individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society .. . 1 1 3 Bickenbach observes that, as the political strategy that forms the basic platform of disability rights movements around the world, the minority rights model is a proven success. In his words: These [disability rights] movements can be credited with nearly every change in attitude and treatment of people with disabilities in the last two decades -from kerb cuts to accessible bathrooms, to programs to integrate developmentally disabled children into the public schools to protections of the rights of people in mental institutions.114 Despite this success, some disability theorists, led by Bickenbach, are questioning the long-term effectiveness of the minority rights model. 1 1 5 Bickenbach advocates for a "universalist" paradigm to address the inequality of disabled people. While minority rights supporters consider people with disabilities as a discrete and insular minority, universalists see 1 1 2 42 USC 12101 (1990) [ADA] 1 1 3 The words "discrete and insular minority" are consistent with the language used by the U.S. Supreme Court to limit the scope of constitutional protection and which was adopted by the Supreme Court of Canada to define the scope of s. 15 of the Charter. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 183. 1 1 4 Jerome E. Bickenbach, "Minority Rights or Universal Participation: The Politics of Disablement" in M. Jones & L. A. Basser Marks, eds., Disability, Divers-Ability and Legal Change (London: Kluwer Law International, 1999) 101 at 105 ["Minority Rights"]. 1 1 5 His critique is developed in several sources: Physical Disability, supra note 33; "Minority Rights", ibid.; and Jerome E. Bickenbach, "Disability and Equality" (2003) 2 Journal of Law and Equality 7 ["Disability and Equality"]. For this summary I rely primarily on "Minority Rights". 110 disabilities as part of the universal human condition. The former advocate anti-discrimination laws to remedy the inequality; the latter seek to do so by expanding the range of the normal. The universalist critique therefore begins with a challenge to the assumption on which the model is based: that people with disabilities can be characterized as a minority group. It is through their status as a minority group that disabled people claim rights (including equality rights) parallel to those granted to other minority groups. Bickenbach argues that the social response to impairment varies with the type of impairment, and there is no common experience or feeling of solidarity amongst people with different disabilities. In his words: "there is no unifying culture, language or set of experiences; people with disabilities are not homogeneous, nor is there much prospect for trans-disability solidarity.""6 This critique suggests that the diversity of people with disabilities contrasts with racial minorities, on whom the model is based. Yet, many racial minorities are not marked by the homogeneity of experience that Bickenbach and others seem to require. Blacks as a minority includes Black men and women; they may be straight, gay, lesbian, or transsexual; they may be conservative, liberal or apolitical; they may have been born and raised in Atlanta, Vancouver, or Kinshasa; they may be rich or poor, urban or rural; and they may be able-bodied or disabled. What unifies them is not their common culture, language or set of experiences, but their common experience as members of a group that has been collectively disadvantaged by a history of discrimination. The same shared experience of discrimination 1 1 6 "Minority Rights", supra note 114 at 105. Jonathan Penney makes a similar argument in "A Constitution for the Disabled or a Disabled Constitution?: Toward a New Approach to Disability for the Purposes of Section 15(1)" (2002) 1 Journal of Law & Equality 83 at 91-92. I l l underlies the minority group analysis of disability. It is true that membership in the group is not necessarily permanent. People are constantly being added to the group by illness or injury; and some leave it through treatment, cure or technological change. However, they experience the same environment as long as they are in the minority as do other members of the group. Their different sets of experiences may cause them to respond to that environment differently, but the same can be said of other minority groups. Bickenbach's second critique is that, even i f people with disabilities are a minority group, there is no reason to think that anti-discrimination legislation is an effective means to address the social i l l of discrimination.117 For support, he points to some of the failures of the ADA. First, plaintiffs have spent much time and energy trying to prove that they qualify for the protection of the ADA. He suggests that it is demeaning to have to "earn one's right to equality and eligibility to 'special treatment' by proving that one is a member of a socially discredited group".1 1 8 This, he says, is particularly problematic because of the definition of disability in the ADA, which requires medical evidence of disability, and thereby medicalizes the process. Finally he is critical because it excludes some people with disabilities because they are seen as "unworthy" people with disabilities. The ADA has not been as effective as disability rights activists had hoped. Judicial interpretation has narrowed its scope and applicability.1 1 9 However, the failure does not 1 1 7 Bickenbach, "Minority Rights", supra note 114 at 106. mIbid. 1 1 9 In Sutton v. United Airlines Inc., 527 U.S. 471 (1999); Albertson's Inc. v. Kirkingburg, 527 U.S. 555 (1999); and Murphy v. United Parcel Service, 527 U.S. 516 (1999), the U.S. Supreme Court held that, although the plaintiffs' employment had been curtailed by their impairments (correctable myopia, monocular vision, and high blood pressure respectively), they were not sufficiently disabled to fall within the coverage of the ADA. In Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001), the Court refused to apply the law to 112 demonstrate that anti-discrimination legislation will inevitably be limited in its application. More carefully crafted legislation may be more effective than the ADA. Moreover, courts in other jurisdictions may interpret anti-discrimination statutes more liberally. As Bickenbach acknowledges,120 Canadian judges have followed a different path than their American colleagues. The Supreme Court of Canada has accepted the social model of disability and has stated that, when considering discrimination on the basis of disability, whether in the context of anti-discrimination legislation or the Charter, the focus is not on the impairment but on the social response to the impairment: Generally, these guidelines [for interpreting "disability" or "handicap"] should be consistent with the socio-political model proposed by J. E. Bickenbach in Physical Disability and Social Policy (1993). This is not to say that the biomedical basis of "handicap" should be ignored, but rather to point out that, for the purposes of the [Quebec] Charter, we must go beyond this single criterion. Instead, a multi-dimensional approach that includes a socio-political dimension is particularly appropriate. By placing the emphasis on human dignity, respect, and the right to equality rather than a simple biomedical condition, this approach recognizes that the attitudes of society and its members often contribute to the idea or perception of a "handicap". In fact, a person may have no limitations in everyday activities other than those created by prejudice and stereotypes.121 The failure of the ADA to address disability under a social model does not reflect a flaw in the minority rights model, nor does it demonstrate the inadequacy of anti-discrimination law state governments. And in Chevron U.S.A. Inc. v. Echazabal, 00-1406, 122 S. Ct. 2045 (2002), the court held that the ADA does not prevent an employer from firing a disabled employee for his own good. 1 2 0 Bickenbach, "Disability and Equality", supra note 115 at 9. 121 Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665 at para. 77. The reasoning is not limited to the Quebec Charter. The Court reiterated (at paras. 43-46) that differences in terminology do not support a conclusion that there are different purposes in the legislation. The Court has adopted a similarly broad definition of disability in the context of s. 15 of the Charter of Rights and Freedoms. In Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R 703, the Court stated (at para. 29): "The concept of disability must therefore accommodate a multiplicity of impairments, both physical and mental, overlaid on a range of functional limitations, real or perceived, interwoven with recognition that in many important aspects of life the so-called 'disabled' individual may not be impaired or limited in any way at all." 113 as a remedy for the social i l l of discrimination; i f there is a failure, it is in the vision of the American judiciary. A further criticism of the effectiveness of the ADA is that it has little to offer people with multiple or serious impairments. This tends to create another class of "inferior" people, those for whom anti-discrimination legislation offers no benefit. A recent study by Judith Mosoff lends some credence to this argument. Mosoff reviewed Canadian human rights decisions from 1985-1998 and found that people with serious disabilities were underrepresented in the pool of complainants whose complaints had proceeded to hearing.1 2 3 While this is a serious criticism of the effectiveness of anti-discrimination legislation, the problem may reflect systemic inequities in the enforcement of human rights legislation rather than a flaw in the minority rights analysis. The institutions that have been established by governments to administer human rights legislation and which are intended to remove discriminatory barriers may be insensitive to the barriers faced by people with severe disabilities or may create barriers that prevent people with disabilities from equal access to the those institutions. I will return to the issue of access to enforcement in the next chapter. Bickenbach's critique also raises the concern that, by focusing on their status as a distinct and disadvantaged minority, people with disabilities highlight their difference from the mainstream. This is the "dilemma of difference", as it has been termed by Martha Minow. She describes the question thus: "when does treating people differently emphasize their differences and stigmatize or hinder them on that basis? and when does treating people the same become insensitive to their difference and likely to stigmatize or hinder them on that 1 2 2 Bickenbach, "Minority Rights", supra note 114 at 108. 1 2 3 Judith Mosoff, "Is the Human Rights Paradigm 'Able' to Include Disability: Who's In? Who Wins? What? Why?" (2000) 26 Queen's L.J. 225. 114 basis." 1 2 4 This dilemma has particular force for people with disabilities. They argue that their disabilities are largely socially constructed as a result of narrow mainstream conceptions about what is normal; however, to function within that mainstream they often require some accommodation of their differences. This dilemma is not unique to people with disabilities. Religious minorities and women face similar dilemmas, for example when addressing accommodation of pregnancy or religious practices. Racial minorities face it when seeking affirmative action programs that make irrelevant personal differences relevant for the purpose of eliminating inequality. The dilemma of difference raises difficult theoretical problems for minorities; it does not, however, justify abandoning the minority rights model. It is only by recognizing that mainstream norms have unnecessarily excluded a sector of the community and created a minority that those norms can be deconstructed and recreated on a more inclusive model. Until that happens, people with disabilities will require accommodation of their differences. Finally, Bickenbach argues that a strategy that relies entirely on civil rights and anti-discrimination legislation will have limited value for people with disabilities because of the obstacles they face. He states: People with disabilities face unaccommodating physical and organizational environments, lack of educational or training programming, impoverished or non-existent employment prospects, confused and inadequate income support programs, under-financed research for assistive d evice technologies, lack of resources to meet impairment-related needs, policy neglect and minimal political influence.125 1 2 4 Martha Minow, Making all the Difference: Inclusion, Exclusion and American Law (Ithaca, New York: Cornell University Press, 1990) at 20. 1 2 5 Bickenbach, "Minority Rights", supra note 114 at 108. 115 Bickenbach agrees that these are socially-constructed disadvantages created by disability. In his view, however, they are not problems of discrimination. He states that: ... a person is discriminated against when through no fault of their own the person is disadvantaged in some way by the decisions or actions of others explicitly carried out on the basis of some morally irrelevant feature of that person. In light of this injustice, a corrective or remedial response by way of compensation - flowing from the responsible party - for wrongful conduct.126 This description of formal and intentional discrimination rolls back Canadian judicial interpretation by about two decades. Canadian courts long ago rejected the view that the right to be free from discrimination was limited to conduct that was explicitly related to a prohibited characteristic. As I will discuss further in the next chapter, in O 'Malley the Supreme Court of Canada held that a neutral practice that expressed no discriminatory intent could, nevertheless, constitute discrimination.127 Bickenbach acknowledges that "it is common in equality jurisprudence to speak of derivative forms of discrimination - 'indirect', 'adverse effect', or 'constructive'".128 In his view, however, these are legal fictions designed to provide a remedy where there is no evidence of a discriminatory intent or even a discriminator, and they should not form the basis of a political strategy. He reasons that discrimination is a social evil because it offends the dignity of an individual or group. Compensation is a meaningful remedy for the victim of an insult. Where neutral factors, such as economics, are the cause of disadvantage "there is no insult, because there is no 190 • • insulter". For Bickenbach, inequality for people with disabilities lies primarily in a denial of their positive freedoms to achieve what it is they wish to achieve. The denial of resources 126 Ibid, at 108-109. 127 Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 18. 1 2 8 Bickenbach, "Minority Rights", supra note 114 at 109. 116 and opportunities that lie at the root of this inequality are issues not of discrimination but of distributive justice. There are problems with Bickenbach's analysis. I have already alluded to the first: he relies on an obsolete definition of discrimination. Bickenbach may be correct in his description of the judicial motive for interpreting discrimination broadly. The interpretation may have been a legal fiction; however, that interpretation is now a reality for tribunals and courts seeking to apply anti-discrimination legislation. Adverse effect discrimination is an established part of Canadian law and must be applied by tribunals and judges. If tribunals and judges are able to interpret anti-discrimination statutes so as to provide for substantive equality that enhances positive freedom, why not adopt the use of such legislation as a political strategy? One reason suggested by Bickenbach is that, even where substantive interpretations are available, judges wil l return to the "core" notion of discrimination (i.e. Bickenbach's notion) to determine if conduct contravenes the law. 1 3 0 A conservative application of the legislation does not mean that a strategy that relies on the legislation should be abandoned; it may indicate a need for political action to reform the legislation to better ensure applications that are consistent with the substantive purposes of the legislation. More significantly, Bickenbach suggests that anti-discrimination legislation is a form of remedial or corrective justice; whereas the disadvantages of disablement are primarily problems of distributive 130 Ibid. Some support for this suggestion can be found in the case of Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 in which the parents of a child with cerebral palsy claimed that the School Board's decision to place their daughter in a special education class was contrary to s. 15 of the Charter. The Court held that the Board's decision to place her in a segregated setting "did not constitute the imposition of a burden or disadvantage nor did it constitute the withholding of a benefit or advantage". The Court was persuaded that the Board was concerned with the child's best interests. The Court may, without having said so, have been swayed by the absence of the invidious conduct that Bickenbach describes as underpinning discrimination. For further discussion of this case, see Margot Young, "Sameness/Difference: A Tale of Two Girls" (1997) 4 Review of Constitutional Studies 150. 117 injustice. However, the two forms of justice are not mutually exclusive. It may be possible to correct a discriminatory practice through an order requiring redistribution. For example, in Eldridge131 the Supreme Court of Canada required the government to pay the cost of sign language interpreters to provide deaf people equal access to medical services. This requires some degree of redistribution of funds, either by transferring money away from other government services or by raising additional funds through general taxation. Eldridge was a Charter case; nevertheless, it illustrates how discriminatory conduct may be remedied through a redistributive order. It may be that anti-discrimination enforcement mechanisms are limited in their ability to effect the distributional adjustments required for full equality (an issue I will address in the following chapter); however, i f they can effect some redistribution, they may still be a valuable part of a political strategy. That brings me to another problem with Bickenbach's analysis. He suggests that the minority rights analysis "sets its sights entirely on civil rights and anti-discrimination protection".132 It is true that anti-discrimination legislation formed an important part of the minority rights strategy.133 However, disability rights activists have not set their sights entirely on such protection. As is clear from the Obstacles report, activists advocated for a broad range of reforms, many of which did not involve anti-discrimination protection.134 The battle for equality is fought on many fronts. 131 Supra note 96. 1 3 2 Bickenbach, "Minority Rights", supra note 114 at 108. 1 3 3 For a powerful statement of that position, see Barnes, supra note 9. 1 3 4 They sought, for example, stronger affirmative action programs, a national disability pension program, and the development of accessibility standards for housing: Obstacles, supra note 68. 118 Lawyer Jonathan Penney also questions the ability of the minority rights model to achieve substantive equality. He submits that "[i]n arguing for special equality guarantees and accommodation for a minority group of people with disabilities, it does not challenge mainstream norms and structures."135 It is true that the claim for accommodation has formed an important part of disability rights advocacy. For example, David Lepofsky observes that people with disabilities must function in a world in which virtually all institutions were designed on the premise that they are intended to serve the able-bodied; in such a world, "[ajbsent a duty to accommodate, equality guarantees would be entirely meaningless [for people with disabilities]."1 3 6 Penney is not alone in his concern that acceptance of the concept of reasonable accommodation may implicitly suggest that it is acceptable to base institutional and architectural obstacles on mainstream norms. The passage from the DaWN factum quoted above expresses the same concern.1 3 7 However, this concern reflects a problem with the concept of reasonable accommodation, not with the minority rights approach. That approach seeks to achieve equality through recognition of the rights of people with disabilities. Reasonable accommodation was a concept designed to overcome a formal conception of equality. However, conceptions of equality have evolved in theory and jurisprudence. Conceptions of substantive equality that call for transformation of society rather than individual accommodation are not inconsistent with a minority rights model. For example, Evelyn Kallen, who applies a minority rights analysis, views the disadvantage faced by minority groups as resulting from systemic human rights violations which create 1 3 5 Penney, supra note 116 at 93. 1 3 6 Lepofsky, "Duty to Accommodate", supra note 8 at 6-7. Similarly Anne Molloy (now Molloy J.) states: "If persons with disabilities are ever to achieve true equality in employment, ... it will only be upon an understanding and acceptance ... of the duty to accommodate as an essential element of equality": Anne M. Molloy, "Disability and the Duty to Accommodate" (1992) 1 Can. Lab. L.J. 23 at 24; she adds (at 26) that "[fjor people with disabilities, the right to accommodation goes to the very heart of equality." 137 Supra note 110 and accompanying text. See also Shelagh Day and Gwen Brodsky, "The Duty to Accommodate: Who will Benefit" (1996) 75 Can. Bar Rev. 433 at 462. 119 oppression. Individual people with disabilities may experience discrimination, but it is because of their membership in an oppressed collective. Kallen concludes that, although disabled individuals have a valid legal complaint, social policy should be aimed at the 138 oppressive environment. Substantive conceptions of equality, that seek transformation rather than accommodation, can be incorporated into a minority rights analysis. Moreover, the Supreme Court of Canada has accepted that the purpose of anti-discrimination legislation is to achieve substantive equality, and that reasonable accommodation may not always achieve that purpose.139 Nevertheless, the duty to accommodate individuals will likely remain an important part of the minority rights model, i f only because the transformation of society does not come easily. Although transformation is a laudable goal, it takes time. In the meantime, individual accommodation will enable some people with disabilities to participate in work or leisure activities who could not do so otherwise. Moreover, it is difficult to conceive of transformation so complete that everyone can be included without some accommodation. Whether or not these critiques of the minority rights model are persuasive, they raise a practical question about the effectiveness of the minority rights model: Although a rights-based model is able to accommodate substantive and transformative conceptions of equality, are the mechanisms of enforcement effective in achieving those conceptions of equality? I 1 3 8 Evelyn Kallen, Label Me Human: Minority Rights of Stigmatized Canadians (Toronto: University of Toronto Press, 1989) at 192-220. 139 British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 at para. 41. 120 will address that question in the next chapter. Before I do, it will be helpful to consider the alternative proposed by Bickenbach. (c) Universalism Following the work of American sociologist Irving Zola, Bickenbach argues for a strategy that views disability as a universal condition. Bickenbach describes this model as "universalism".1 4 0 Universalism accepts the social model of disability. It also accepts that, because of their disabilities, people with disabilities are disadvantaged with respect to resources and opportunities. Universalists differ from the minority rights analysis in two fundamental respects. First, they do not view people with disabilities as a minority. In Bickenbach's words, "a disability should not be viewed as a human attribute that demarcates one portion of humanity from another (as gender does, and race sometimes does), but rather as an infinitely various but universal feature of the human condition."1 4 1 There are no inherent boundaries to the variation of human abilities; rather they are part of a continuum in which "the complete absence of disability, like the complete absence of ability, is a limiting case of theoretic interest only." 1 4 2 In other words, boundaries are drawn which have the effect of creating disability; some people become disabled because they fall on the wrong side of the line. However, according to the universalist model, those boundaries do not reflect inherent boundaries in human abilities but are drawn for political or social reasons. They are therefore negotiable as a matter of social or political policy. The model is discussed in Bickenbach, "Minority Rights", supra note 114 at 111-114. 140 141 Ibid, at 112. 142 Ibid. 121 The second premise on which the universalist model differs from the minority rights model is its focus on distributional injustice rather than discrimination. People with disabilities face issues involving the fit of their impairment to the social and structural environment. That fit is determined by how society distributes resources and opportunities. That distribution may unfairly benefit some people at the expense of others. Bickenbach acknowledges that unfair distribution may be the result of discriminatory behaviours or practices. He adds: But when discrimination is not involved, the injustice may well remain, i f the distribution of society's resources and opportunities ignores the full range of human variation in need, and caters instead to some frozen and arbitrary conception of the normal. 1 4 3 The strategy advanced by universalists is to expand the range of the normal. Not by forcing people with disabilities to become more like an able-bodied norm, but by widening the range of normal "to more realistically include empirically-grounded human variation." 1 4 4 Bickenbach provides little guidance on how this strategy is to be achieved; however, he is clear that anti-discrimination legislation will not be the central tool. In his words: Anti-discrimination legislation, long the darling o f the disability movement, must in the end be seen as playing an essential, but limited, role in the equality agenda. Attempts to extend and expand anti-discrimination law in order to remedy inequality in all of its manifestations will ultimately be futile and may completely undermine the effectiveness of this law in its proper domain. To better serve the disability equality agenda, the spotlight must be turned from anti-discrimination to social welfare law - that complex and highly political domain of law and policy designed to facilitate the transfer of resources, accommodations, and opportunities for persons with disabilities.1 4 5 143 Ibid, at 113. "\lbid. Bickenbach, "Disability and Equality", supra note 115 at 13. 144 145 122 For Bickenbach, the normative basis for disability policy should be equality. That is a point on which he and the minority rights supporters would likely agree. For him, equality for people with disabilities is an issue of distributive justice. But what is the basis for a claim to distributive justice? And i f people with disabilities are simply part of a human continuum of abilities, what distinguishes their claim from those who lack skills or talents? Bickenbach recognizes the importance of these questions: ... an adequate normative basis for disablement would address the fundamental entitlement controversies that set the agenda for policy development. It is essential that the basis resolve the question whether the entitlement of people with disabilities are enforceable rights or merely benefits that society provides or withholds at pleasure.146 These are questions of policy that, according to Bickenbach, ought to be addressed in the political sphere. He recognizes, however, that once policy becomes a matter of politics, it must compete with other claims: Disablement policy decisions, plainly enough, cannot be made in a vacuum. There are other calls on society, its resources, institutions and citizens. An adequate framework for policy decision-making must come to grips with macroallocative dilemmas, and it must shed light on what is to be done about our obligations to people with disabilities, given our other social obligations.147 Bickenbach does not offer a fully-developed theory of equality that addresses these issues. Indeed, he observes that an equality theory to address all of the problems associated with disability policy "would surely count as the major intellectual achievement of this [twentieth] 148 century (or more likely the next)". Bickenbach, Physical Disability, supra note 33 at 224. Ibid, at 229. Ibid, at 223. 123 Although Bickenbach does not provide a comprehensive theory, he is clear that the focus should be on distributive justice and that the minority rights approach, with its emphasis on anti-discrimination laws, is therefore inadequate. He offers two examples of American legislation that, in his view, address distributional injustice. The first Act transfers federal funds to the states to support programs for the development of assistive technology.149 The funding is conditional on the involvement of people with disabilities in the maintenance, improvement and evaluation of the programs. It is not immediately evident how this reflects a universalist view. The funding is directed to providing resources for people with disabilities through programs in which people with disabilities have considerable control. It is a program that fits comfortably in a minority rights model. Although this Act does not support the universalist perspective, it illustrates how a social welfare law may, in some circumstances, be able to redistribute resources to people with disabilities more effectively than anti-discrimination legislation. This Act also illustrates one of the theoretical gaps in the universalist analysis. Under a minority rights analysis the justification for allocating funds to such a program and for giving people with disabilities some control over the funding is clear: people with disabilities are part of a minority group that has been victimized by a history of prejudice that is reflected in exclusionary environmental norms. This history separates them from people who lack skills or talents. What is the justification for the program if people with disabilities are not a minority group? Doubtless there are many people whose lives could be made easier through the development of new technology. Why privilege people with disabilities? Bickenbach might respond that the social obligation arises from society's responsibility for the creation 1 4 9 Bickenbach, "Disability and Equality", supra note 115 at 13. 124 of disability, even i f it did not create a discrete and victimized minority. But what makes this redistribution more urgent than a redistribution to relieve other socially-created inequalities? A further problem is that social welfare law generally requires some way of determining who benefits. That will require some form of categorization. It is possible to imagine programs that do not rely on disability to categorize. A guaranteed income scheme could address the problem of poverty that is central to the experience of many people with disabilities, without reference to disability. However, many people with disabilities face additional costs because of their disability. A fair distribution would, presumably, compensate for those costs, but with what justification? There may be philosophical answers to that question; however, as a political strategy, a claim based on legal rights arising from discrimination may be more effective than one relying on philosophical principles. Bickenbach's second example is an Act that addresses the housing design obstacles faced by people with disabilities.1 5 0 In addition to prohibiting discrimination, the Act provides for regulations that set out detailed design and construction standards for multi-family housing, requiring "modest accessibility" for all new housing. Once again, this legislation is consistent with a minority rights model. As Bickenbach acknowledges, the legislation arose out of the anti-discrimination tradition. And, although it moves in the direction of universal design, it falls far short of the ideal. This raises another troubling aspect of the universal model. Bickenbach acknowledges that boundaries that create disability will be set for political or social reasons. He does not explain where the people who fall outside the boundaries fit in his model. If people with disabilities are not a minority group with rights flowing from that status, what are the people who are left out of the broad range of "normal" 150 Ibid, at 13-14. 125 envisioned by the universalist? Released from the mooring of minority rights, what is the basis of their claim for justice - pity, charity, medical need? In fairness, Bickenbach's aim in describing these examples is not to demonstrate the superiority of a strategy based on universalism over one based on minority rights. Rather it is to demonstrate the possibility of legislation that will more effectively address distributive inequality than anti-discrimination legislation does. As previously discussed, his view is based on his conception of the limited scope of anti-discrimination legislation. He states: [T]o be effective as an instrument of corrective justice, anti-discrimination law must be substantively focused and procedurally relevant to its remedial purposes. Nothing is gained - and much is lost - by extending the scope of anti-discrimination law to include inequalities arising from distributive injustice or characterizing disability in a manner irrelevant to the phenomenon of discrimination.151 One does not have to accept his view of discrimination, or his view that a remedial purpose in inconsistent with redistribution, to recognize a more practical question about the effectiveness of anti-discrimination legislation in achieving equality. 5. Conclusion Bickenbach argues that the clash between the minority rights and universalist paradigms will 1 S 9 dominate the politics of disablement for some time to come. And, in his view, universalism will win out. I am not yet persuaded. However, his analysis raises serious questions about the tools we use to achieve equality, and in particular, about the effectiveness of anti-discrimination legislation. Mosoff s study of Canadian human rights decisions 151 Ibid, at 14. 1 5 2 Bickenbach, "Minority Rights", supra note 114 at 113. 126 provides further reason to question its effectiveness. She concludes that anti-discrimination legislation is not achieving its mandate of improving the dignity of people with disabilities by increasing their access to mainstream institutions.153 However, her solution is not to abandon anti-discrimination laws but to make them stronger. As Bickenbach observes, this clash of paradigms is not a central concern for people with disabilities or their advocates. Their concerns are more practical. At a time when government support for social welfare is diminishing and their budgets are shrinking, when employers are demanding more productivity out of a downsized workforce, and when the concept of de-institutionalization has been embraced without the provision of adequate community support, advocates must address the pressing daily needs of their constituents. Philosophers may seek a single unifying paradigm to explain and solve the inequalities experienced by people with disabilities. Advocates seek tools that will work. Anti-discrimination laws have been heavily relied on as one such tool. The work of Bickenbach and Mosoff raise both theoretical and empirical questions about the effectiveness of such laws for achieving equality for people with disabilities. In the following chapter, I will look more closely at the effectiveness of anti-discrimination legislation as a tool for achieving equality. Mosoff, supra note 123 at 270. 127 Chapter IV: Mapping Equality We do not want charity or special favours and privileges; only the same basic rights and freedoms as others. We wish to be treated as equal human beings -to be able to participate in the common life, to the extent of our capabilities, without having to face unnecessary barriers to our involvement. We have the same needs and desires as anyone else - to be self-sufficient - self-determining - to have a measure of dignity and self-respect - to be contributing and responsible members o f society - to enjoy the same b asic freedoms, rights and responsibilities as anyone else in this country.1 1. Introduction The aim of this project is to explore the point at which equality theory becomes a practical reality, particularly for people with disabilities. In the preceding chapters, my focus was on equality theory. The transition from theoretical abstraction to practical application requires that equality be defined so that its achievement can be measured. I began that process in Chapter II by describing the terminology of equality and considering various conceptions of equality. In Chapter III, the focus narrowed to a view of equality through the lens of disability rights. Supporters of the minority rights and universalist paradigms, as discussed in Chapter III, agree that people with disabilities experience inequalities because of their disabilities. It is also common ground that the inequalities are not merely related to individual acts of prejudice; widespread societal attitudes and norms also exclude people with disabilities. Achieving equality for people with disabilities therefore requires not only the elimination of individual prejudice, it also requires societal transformation. However, adherents of the two paradigms disagree on the strategy needed to achieve equality. In 1 Action League for Physically Handicapped Adults of Kitchener-Waterloo, cited in Canada, Parliamentary Special Comrnittee on the Disabled and the Handicapped, Obstacles (1981) at 18. 128 particular, they disagree on the importance of anti-discrimination laws as a tool for achieving equality. This chapter moves the discussion from equality theory to its practical application in anti-discrimination legislation. This then is the lynchpin chapter of this thesis. In it, I consider the administrative powers or procedures that are required to eliminate barriers to equality for people with disabilities, and whether those powers and procedures are or could be effectively incorporated within anti-discrimination laws. When I refer to "administrative powers or procedures", I mean powers and procedures that are provided through legislation, either expressly or impliedly, to agencies charged with the responsibility of administering the legislation. In particular, my focus is on the powers and procedures of statutory tribunals administering anti-discrimination legislation. If equality for people with disabilities requires both the elimination of prejudice and the transformation of society, how is that to be achieved? According to Caroline Gooding, discrimination against people with disabilities operates through four modes: "individual bias, •y exclusionary classifications, neutral practices and structural barriers". Jerome Bickenbach, a universalist whose views are discussed in the previous chapter, would likely disagree that the latter two headings reflect discrimination; however, he would likely agree that they are barriers to equality. There are not bright lines between Gooding's barriers: exclusionary classifications may reflect individual bias; neutral practices may also be structural barriers. Nevertheless, the four types of barriers are helpful in identifying a measure of equality for people with disabilities. That is, removal of some of the types of barriers wil l bring 2 Caroline Gooding, Disabling Laws, Enabling Acts (London; Pluto Press, 1994) at 67. 129 improvements for people with disabilities, but they will not bring the degree of inclusion that is required for substantive equality. A l l four types of barriers must be eliminated or overcome to achieve such equality. Addressing the four types of barriers ensures that the measure of equality reflects a disability rights perspective of substantive equality. However, the four barriers raise many overlapping issues. Some repetition can be avoided by analyzing them within a framework that is tied more directly to theories of discrimination. Discrimination can operate directly or by adverse effect. As will be discussed in the following section, the legal distinction between these two types of discrimination has eroded in recent years. Nevertheless, this analysis will consider those barriers that operate directly separately from those that operate by adverse effect. I do so because, although there is little legal distinction between the two types of discrimination, in practice they operate differently and raise different issues of identification and proof. Moreover, separating them analytically is a reminder that both types of discrimination serve to exclude people with disabilities, and to achieve equality both must be addressed. The first two of Gooding's headings, individual bias and exclusionary classifications, operate directly. However, those two types of barriers raise different issues of proof and analysis and therefore will be addressed separately. The latter two headings, neutral practices and structural barriers, have an adverse effect. The two headings may raise different factual issues,; however, they raise similar issues of proof and analysis and will therefore be considered together. Within my analysis, I will consider the relationship of each barrier to equality and discrimination theory, the powers necessary to identify a barrier to equality, the powers and 130 procedures necessary to investigate and determine whether the barrier contravenes anti-discrimination laws, and the remedial powers needed to remove the barrier. The powers and procedures must be considered in their legal context. I will begin with a description of that legal context with a focus on the legal meaning of "discrimination", the legal burden of proof, and the tests that are used determine i f the burden has been met. 2. Discrimination and the Burden of Proof fa) The Meaning of Discrimination In O 'Malley the Supreme Court of Canada distinguished between two types of discrimination, direct and adverse effect. Direct discrimination is intentional conduct. That is, the discrimination exists because a person intends to differentiate between people because of a distinguishing feature, such as race or disability. The person engaging in the conduct "knowingly treated one or more minority group members less favorably than similarly situated majority group members because of their group status"4 or because of personal characteristics related to that status.5 As noted by Tarnopolsky, the intent is not necessarily malicious.6 The concern is with the intended differential treatment, not the motive for the differential treatment.7 Such discrimination may be expressed openly (i.e. "overt discrimination") or it may be hidden or repressed (i.e. "covert discrimination"). 3 Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 18 [O'Malley}. 4 David C. Baldus & James W.L. Cole, Statistical Proof of Discrimination (New York: McGraw-Hill, 1980) at 23. 5 Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 144 [Andrews). 6 Walter S. Tarnopolsky, "The Iron Hand in the Velvet Glove: Administration and Enforcement of Human Rights Legislation in Canada" (1968) 46 Can. Bar Rev. 565 at 572. 7 For an extended discussion of the use of "motive" and "intent" in anti-discrimination law, see C.N.R. v. Canada (Human Rights Commission), [1987] 1 S.C.R. 1114 at para. 26-33 [Action Travail]. The courts have not always been clear about the distinction between intent and motive. In McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at 279, the majority of the Court said that a mandatory retirement policy, which expressly 131 Overt and covert discrimination, terms which will be of some significance in subsequent sections, are similar in that both are direct and intentional. They differ only in the way they are manifested: with covert discrimination, the intended discrimination is hidden behind seemingly neutral conduct. For example, overt discrimination occurs i f an employer refuses a blind person a job because of the employer's stated belief that a blind person cannot do the job. However, it is covert i f the same employer, with the same - but unstated - belief, allows the blind person to compete, then denies the person the job with the explanation that there were other better qualified applicants. "Adverse effect" discrimination is distinguished from direct discrimination, whether overt or covert, by the absence of any necessary intent to differentiate. The concept of adverse effect discrimination, also referred to as "disparate impact" or "constructive" discrimination, captures any conduct that, though neutral on its face, has a greater impact on an individual or group because of some characteristic related to their membership in a protected group. For example, i f an employer requires a driver's licence as a job qualification, that policy will screen out applicants who cannot obtain a driver's licence. Some people with disabilities are prohibited from obtaining a driver's licence because of their impairments. The employer's policy will therefore indirectly screen out some people with disabilities, adversely effecting them because of their disability. The employer may not have intended to discriminate against people with disabilities, but the policy had that effect. Similarly, a requirement that an applicant pass a written examination will adversely affect people whose disability impairs discriminated on the basis of age, raised the issue of adverse effect discrimination rather than direct or intentional discrimination. 132 their ability to complete written tests. A policy or practice that disproportionately adversely affects people with disabilities will constitute discrimination on the basis of disability even i f there is no causal link between the policy or practice and the disability. Canadian law also recognizes "systemic" discrimination. This type of discrimination was first recognized in the Supreme Court of Canada in the Action Travail case.9 Dickson, C J .C . cited with approval the Abella Report10 on equality in employment: ... Although Judge Abella chose not to offer a precise definition of systemic discrimination, the essentials may be gleaned from the following comments, found at p. 2 of the Abella Report: Discrimination ... m eans p ractices o r attitudes that h ave, w hether b y design or impact, the effect of limiting an individual's or a group's right to the opportunities generally available because of attributed rather than actual characteristics ... It is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone's potential, or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionately negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory. This is why it is important to look at the results of a system. In other words, 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. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, 8 In Canada (Attorney General) v. Green (No. 1) (1998), 34 C.H.R.R. D/166 (C.H.R.T.), aff d with minor variations to the order (2000), 38 C.H.R.R. D/l (F.C.T.D.), the complainant was screened out of a competition because of her performance on tests that were designed to assess her ability to learn French. Those tests required an ability to process auditory information which, due to dyslexia, was a problem for the complainant. The Tribunal ruled that she was discriminated against because of her disability. 9 Supra note 7. 1 0 Rosalie Silberman Abella, Report of the Commission on Equality in Employment (the "Abella Report") (Ottawa: Canadian Government Publishing Center, 1984). 133 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" ... 1 1 In the Action Travail case, the discriminatory practices were evident in widespread and diverse practices that permeated the organization. Conduct such as this, that is pervasive and self-reinforcing within an organization, is what Abella appears to mean by systemic. I take a somewhat different view. In my view, systemic discrimination may also be the result of a single policy with narrow application. Discrimination is systemic when it is embedded in an organization's operations. It occurs when mainstream norms that exclude or distinguish particular groups are incorporated into an organization's policies and practices. The norms may by applied consciously or unconsciously. The norms may be widespread in society, such as physical barriers that exclude people with disabilities, or they may be confined to a particular organization or sector. Systemic discrimination can operate directly or by adverse effect, or by a combination of practices including both direct and adverse effect discrimination. I will consider systemic discrimination within the context of those types of discrimination rather than as a separate category. (b) Burden of Proof Whatever, the nature of the discrimination, under Canadian anti-discrimination law, the initial burden is on the complainant to establish a prima facie case. If that burden is met, the burden shifts to the respondent to lead evidence of a legitimate non-discriminatory explanation for the conduct or to provide evidence to support a statutory defence. The complainant may lead evidence to demonstrate that the proffered non-discriminatory explanation is pretextual; that is, the complainant may demonstrate that the non-" Action Travail., supra note 7 at pp. 1138-39. 134 discriminatory explanation is not genuine - it disguises a discriminatory intent. Or the 1 2 complainant may lead evidence to rebut the statutory defence. (i) The Prima Facie Case The Supreme Court of Canada has described a prima facie case as "one which covers the allegations made and which, i f they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer."13 Courts and tribunals recognize that, in cases of direct discrimination, it is often difficult to prove a discriminatory motive; therefore, the burden on the complainant is relatively light. 1 4 Moreover, in such cases there is rarely direct evidence of discrimination. That is, there are no documents or public statements that expressly demonstrate direct discrimination. Instead, direct discrimination is proven by inferences from circumstantial evidence. In Shields v. Cameron,15 Council Member Williamson observed: 1 2 For a discussion of the burden of proof in Canadian discrimination cases, see Beatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987) at 120-130. 13 O'Malley, supra note 3 at para. 28. 1 4 Some recent decisions impose a heavier burden by requiring that complainants establish, as part of the prima facie case, that the alleged conduct affected their dignity. In Law v. Canada (Employment and Immigration), [1999] 1 S.C.R. 497, the Court held that an analysis of a claim under s. 15 of the 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 l 1 [Charter] required a contextual consideration of the claimant's dignity interests. In British Columbia Government and Service Employees' Union v. British Columbia (Public Service Employee Relations Commission), 2002 BCCA 476, 216 D.L.R.(4th) 322, the Court of Appeal held that the Law analysis was applicable when analysing complaints before the Human Rights Tribunal. However, the applicability of Law analysis remains contentious (see, for example, Vancouver Rape Relief Society v. Nixon, 2003 BCSC 1936, 22 B.C.L.R. (45th) 254) and the Supreme Court of Canada has recently indicated that, even in the Charter context, the Law analysis is not to be applied mechanically: Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657 at para 22-25. In my view, it is unlikely that the Law analysis will be routinely or mechanically applied by human rights tribunals and I will not consider it further in this thesis. For further discussion of the issue, see Christine Boyle, "The Anti-Discrimination Norm in Human Rights and Charter Law: Nixon v. Vancouver Rape Relief (2004) 37 U.B.C. L. Rev. 31. 1 5 (1993), 20 C.H.R.R. D/222 at D/227, para. 42 (B.C.C.H.R.). Similarly in Basi v. Canadian National Railway Co. (No. 1) (1988), 9 C.H.R.R. D/5029 (Can.Trib.),the Tribunal put it this way (at D/5038, para. 38481): "Discrimination is not a practice which one would expect to see displayed overtly. In fact, rarely are there cases where one can show by direct evidence that discrimination is purposely practised." 135 ... d iscrimination o ften d oes n ot o ccur t hrough direct, u nequivocal a cts, b ut must be inferred from circumstantial evidence. Accordingly ... it is often relatively easy for a complainant to make out a prima facie case, i.e., persuade the tribunal that the respondent has engaged in conduct that requires explanation. How is that inference drawn? According to Beatrice Vizkelety, "an inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences."16 A number of tests have been proposed for establishing a prima facie case. One such test in the context of employment 17 applications is described in Israeli v. Canadian Human Rights Commission as follows: The complainant must show: 1. that he belongs to one of the groups which are subject to discrimination under the Act, e.g., religious, handicapped or racial groups; 2. that he applied for and was qualified for a job the employer wished to fill; 3. that although qualified he was rejected; and 4. that thereafter the employer continued to seek applicants with [the] complainant's qualifications. In other words, i f a qualified job applicant is a member of a protected group, is rejected, and the employer continues to look for qualified job applicants, it is reasonable to infer that membership in the group was the determining factor. This test is based on one developed a 18 decade earlier in the United States in McDonnell Douglas Corporation v. Green. The test is appealing because it is based on information to which the complainant would have easy access: the first three points would be directly known to the complainant, and the fourth would be in the public domain. Nevertheless, in most cases, even in the employment context, the test is not helpful. Although the first three points are simple to establish, they do not lead to a logical inference that membership in the protected group is the likely reason for 1 6 Vizkelety, supra note 12 at 142. 1 7 (1983), 4 C.H.R.R. D/1616 (Can.Trib.) at D/1618, para. 13865; aff d (1984), 5 C.H.R.R. D/2147 (Can. Rev.Trib.). 1 8 411 U.S. 792 (1973). 136 the rejection: the complainant may have simply lost out to a better candidate. The fourth point is what makes the inference of discrimination reasonable. However, in an employment market in which there is surplus labour, it is rare that there is evidence that an employer continued to seek applicants after the complainant was rejected as the job will normally be filled through the competition. In Shakes v. Rex PakLtd.,19 an Ontario Board of Inquiry modified the test to address this reality: In an employment complaint, the Commission usually establishes a prima . facie case by proving: (a) that the complainant was qualified for the particular employment; (b) that the complainant was not hired; and (c) that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint... subsequently obtained the position. Failure to meet the requirements of the prima facie tests described above is not fatal to a complaint of discrimination. This test is merely one method to infer that a prima facie case has been established. If a prima facie case is established, the evidentiary burden shifts to the respondent. These tests address cases in which direct discrimination is alleged. The same burden of proof applies to cases alleging adverse effect or systemic discrimination. With adverse effect discrimination, the prima facie burden is met by providing evidence from which it is reasonable to infer that a rule or practice disproportionately affects the complaint because of his/her membership in the protected group. Systemic cases may involve direct or adverse effect discrimination, or a combination of them (as in the Action Travail case). But the burden of proof is the same: has a prima facie case of discrimination been established? 1 9 (1981), 3 C.H.R.R. D/1001 atD/1002 (para. 8918). 137 (ii) The Respondent's Defence There are two approaches that a respondent may take in its defence. The first is to lead evidence rebutting the prima facie case. That is, a respondent may lead evidence to establish that the impugned conduct did not occur as alleged by the complainant or that, i f it did occur, it was for reasons unrelated to the prohibited ground of discrimination. So, for example, in a case alleging discrimination based on disability, the employer might lead evidence to show that the complainant was not treated any differently than other employees, or that the adverse treatment was related to factors such as the complainant's performance or qualifications that were not directly or indirectly related to the disability. Alternatively, the respondent may lead evidence to show that the impugned conduct did not contravene the law because it is covered by a statutory exception. In cases of disability, the most commonly used exception is that the discrimination was based on a bona fide occupational requirement ("BFOR") (or "bona fide justification" in the context of services). Canadian anti-discrimination legislation permits employers to discriminate when the discrimination is based on a BFOR. For example, under the current Code20 in British Columbia, s. 13(3) states: "Subsections (1) and (2) [prohibiting discrimination in employment] do not apply with respect to a refusal, limitation, specification or preference based on a bona fide occupational requirement." The Supreme Court of Canada addressed the application of the BFOR defence several times through the 1980s and 1990s, at times reversing itself. The Court developed different analytical frameworks for direct and adverse effect discrimination. This distinction caused 20 Human Rights Code, R.S.B.C. 1996, c. 210 [ BC Code]. 138 considerable confusion and controversy.21 The Supreme Court of Canada re-visited the BFOR defence in the Meiorin22 case. The Court concluded that there should be only one test for assessing a justification defence of discriminatory conduct, whether the conduct was direct discrimination or operated by adverse effect. Now, in all cases in which a respondent claims that its discriminatory conduct is justified, it must establish that: (1) it adopted the standard for a purpose or goal that is rationally connected to the function being performed; (2) it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and (3) the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.23 Shortly after Meiorin was released, the Court released Grismer24 which addressed exclusionary classifications in the context of disability. Mr. Grismer was denied a driver's licence because of a visual impairment, homonymous hemianopsia, which affected his peripheral vision. According to the policy of the Superintendent of Motor Vehicles, such a condition was a bar to issuance of a driver's licence. So, although Mr. Grismer passed his driver's test, the Superintendent would not issue him a licence. The Court noted that there is no suggestion that the law requires that people with visual impairments be licensed to drive i f they cannot do so safely; rather the question was whether Mr. Grismer should have been 2 1 For a discussion of the many cases and issues involved, see Shelagh Day & Gwen Brodsky, "The Duty to Accommodate: Who Will Benefit?" (1996) 75 Can. Bar Rev. 433. 22 British Columbia (Public Service Employee Relations Commission) v. BCGEU, [1999] 3 S.C.R. 3 [Meiorin]. 23 British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 at para. 20 [Grismer]. 139 given an opportunity "to prove through an individual assessment that he could drive."z' McLachlin C.J.C., writing for a unanimous court added that the case: ... is also about combatting false assumptions regarding the effects of disabilities on individual capacities. A l l too often, persons with disabilities are assumed to be unable to accomplish certain tasks based on the experience of able-bodied individuals. The thrust of human rights legislation is to eliminate such assumptions and break down the barriers that stand in the way of equality for a l l . 2 6 The Court reinforces this message later in the decision, stating that employers and service-providers are required: ... to accommodate the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. Incorporating accommodation into the standard itself ensures that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics. Such characteristics are frequently based on bias and historical prejudice and cannot form the basis of reasonably necessary standards.27 In addition to this clear statement that one of the purposes of anti-discrimination legislation is to eliminate barriers to equality that are based on historical prejudice and assumptions, the Court is clear that, to achieve this purpose, it will place the burden on those who seek to justify such discrimination. On the subject of safety, the Court states that, following Meiorin, risk has a limited role in the analysis. It rejects "the old notion that 'sufficient risk' could justify a discriminatory standard".28 Instead, risk is considered as an issue related to undue 25 Ibid, at para. 2. 26 Ibid. 2 1 Ibid, at para. 19. 28 Ibid, at para. 30. 140 hardship. Further, the Court reiterates what it had said as early as the Etobicoke1'"'case: the objective element requires reliable evidence; impressionistic evidence will not suffice. For example, on the issue of cost, the Court stated: While in some circumstances excessive cost may justify a refusal to accommodate those with disabilities, one must be wary of putting too low a value on accommodating the disabled. It is all too easy to cite increased cost as a reason for refusing to accord the disabled equal treatment. This Court rejected cost-based arguments in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at paras. 87-94, a case where the cost of accommodation was shown to be modest. I do not assert that cost is always irrelevant to accommodation. I do assert, however, that impressionistic evidence of increased expense will not generally suffice.30 The courts have defined discrimination and established a burden of proof. If equality is to be achieved through enforcement of anti-discrimination laws, barriers to equality must be identified and proven to constitute discrimination within that legal context. For people with disabilities, that means the barriers identified by Gooding must constitute discrimination as described by the courts. And there must be mechanisms for identifying those barriers when they occur, for proving liability, and for eliminating the barriers. I turn now to consider those mechanisms. 29 Ontario (Human Rights Comm.) v. Etobicoke (Borough), [1982] 1 S.C.R. 202, 3 C.H.R.R. D/781 [Etobicoke cited to C.H.R.R.]. 30 Ibid, at para. 41. 141 3. Direct Discrimination As discussed above, direct discrimination occurs when a person intentionally differentiates between people because of a distinguishing feature such as disability. That is, the person engaging in the conduct knowingly treats a person adversely because that person is a member of a group or has particular characteristics associated with the group. The conduct is intentional, but not necessarily malicious. Gooding describes two types of direct discrimination encountered by people with disabilities: individual bias and exclusionary classifications. There can be a blurring between these two categories of discriminatory conduct, as will be discussed below. What distinguishes them conceptually, i f not always in reality, is the presence of some rational basis for exclusionary classifications. (a) Individual Bias According to Gooding: "This form of discrimination [i.e. discrimination based on individual bias] involves treating people who are disabled adversely without any rational reason or "pretext."31 That is, the differential treatment is the direct and intended result of an individual's bias. It is discrimination based on prejudice. The prejudice is not necessarily malicious. It may be rooted in hostility and fear or the result of paternalism and pity. Nevertheless, it results in preconceptions, or bias, about the abilities of people with disabilities or their appropriate role in society. Whatever its cause, the prejudice is a barrier to equality. In a recent survey of lawyers with disabilities in British Columbia, over half of the lawyers who responded indicated that they had "experienced prejudice, devaluing and 3 1 Gooding, supra note 2 at 68. 3 2 For a discussion of disability-based prejudice, see Silvia Yee, "Where Prejudice, Disability and "Disablism" Meet", in Mary Lou Breslin & Silvia Yee, eds., Disability Rights Law and Policy: International and National Perspectives (Ardsley, NY: Transnational Publishers, 2002) 129. 1 4 2 stigma within the legal profession",33 and that significantly prejudice came from fellow lawyers and judges. One respondent stated: "It comes down to attitudes and the presumption that, i f you have any obvious disability, you are probably more or less incompetent."34 Another described a courtroom incident: "The judge flatly refused to talk to me; he would direct every question to the Crown." 3 5 Differential treatment based on individual bias or prejudice accords with formal conceptions of inequality. It involves treating people with disabilities less favourably or denying them opportunities because of their disabilities. Moreover, as discussed above, the conduct is intentional in the sense that there is an intention to distinguish people with disabilities from others. This form of discrimination, which most closely resembles the popular conception of discrimination, was at the heart of the anti-discrimination legislation that was introduced in the 1960s. Even then, it was recognized that the bias did not necessarily flow from bigotry or malice. In 1968, Walter Tarnopolsky wrote: [H]uman rights legislation is a recognition that it is not only bigots who discriminate, but fine "upright, gentlemenly" members of society as well. It is not so much out of hatred as out of discomfort or inconvenience, or out of the fear of loss of business, that most people discriminate.36 3 3 Linda Hill, "Lawyers with Disabilities: Identifying Barriers to Equality" (Law Society of British Columbia, 2001) 25, online at forms/report-committees/bodv reports 0101 (Disability).html (accessed March 11, 2005) A study in California found similar results: Nancy McCarthy, "Attorneys with Disabilities Face Tough Job Market" (August 2004) California Bar Journal, online at cbi.isp?sCategoryPath=/Home/Attornev%20Resources/California %20Bar%20Journal/August2004&sCatHtmlPath=cbi/2004-08 TH 03 Disabilitv-iobs.html&sCatHtmlTitle=Top%20Headlines (accessed March 11, 2005). 3 4 Hill, Ibid. 35 Ibid. 3 6 Tarnopolsky, supra note 6 at 572. 143 Discrimination based on individual bias is not always expressed openly; often it is hidden. As discussed above overt and covert discrimination differ only in the way they are expressed. They do not raise distinct theoretical questions; however, they raise different problems of proof so I will deal with them separately. (i) Overt As discussed in Chapter I, prior to the enactment of anti-discrimination legislation, differential treatment based on prejudice was often openly expressed. Signs saying "No Jews or Blacks" or "Men Only" were not uncommon. Such overt displays of racial, religious or gender discrimination are now rare. Yet they persist in the disability context. There are no signs saying "No Blind People Allowed" or "Able-Bodied People Only"; 3 7 however, in many occupations, employees must pass medical screening tests that expressly exclude people because of specified impairments. For example, such screening may expressly exclude applicants whose vision does not meet a prescribed norms or who are diabetic or epileptic. These exclusionary classifications are a form of overt discrimination and may be based on bias. However, they are usually defended as being bona fide occupational requirements and raise different issues of proof than cases in which prejudice is alleged. I wil l therefore address such exclusionary classifications in a separate section of this chapter. Overt prejudice on grounds such as race or gender is often displayed through the creation of a hostile environment; conduct that is generally referred to as harassment. Such harassment 3 7 In Cavallin v. North Burnaby Inn (1984), 6 C.H.R.R. D/2496 (B.C. Bd. Inq.) the respondent did not display a discriminatory sign, but a waitress made it clear that the manager "did not want to serve retarded people." Such cases of overt prejudice appear to be rare. 144 may be evident through the use of derogatory racial terms or sexually offensive language. People with disabilities are not immune from such treatment.38 Identifying a Barrier What powers or procedures are necessary to remove barriers that are based on overt prejudice or stereotypes? Under anti-discrimination laws, the barrier must be capable of being construed as discrimination within the meaning of the applicable statute. In other words, the law must make freedom from such a barrier an enforceable right. I do not mean to suggest that barriers to equality can never be removed without an enforceable right under anti-discrimination laws. Many barriers are removed through education and persuasion, particularly i f the barrier results from ignorance or misunderstanding. However, such change relies on the good will of those who are responsible for the barrier. Reliance only on the good will of individuals whose conduct is driven by prejudice is unlikely to be an effective means to achieve equality. As discussed in Chapter I, prior to the introduction of anti-discrimination legislation, there was no right to be free from differential treatment based on prejudice.40 The first anti-discrimination legislation introduced in Canada expressly prohibited statements that indicated discrimination or an intention to discriminate 4 1 That language, which prohibits 3 8 See, for example, Rayland v. Mountainside Lodge Ltd., [1996] B.C.C.H.R.D. No. 18 (QL) in which the deaf complainant was subjected to derogatory remarks including "Are you deaf?" and "Read my lips." The adjudicator found (at para. 49) that the conduct was analogous to racial or sexual harassment and was therefore discriminatory. 3 9 Early advocates recognized that, although education and persuasion played an important role in eradicating discrimination, an enforceable right must be available when those techniques failed. This was what Tarnopolsky referred to as "the iron hand in the velvet glove": Tarnopolsky, supra note 6 at 573. 4 0 See Christie v. York Corp., [1940] S.C.R. 139. 41 Racial Discrimination Act, S.O. 1944, c. 51. 145 overt discrimination, remains in some statutes.42 Beyond that express prohibition, all Canadian anti-discrimination statutes prohibit discrimination based on disability (or handicap). "Discrimination" is generally undefined; however, there is no doubt that it includes differential treatment based on prejudice. Bickenbach describes this as "core" discrimination.43 It is also generally accepted that it is appropriate to prohibit such conduct through anti-discrimination legislation.44 Even theorists, such as Bickenbach, who question the value of anti-discrimination legislation as a tool for achieving equality accept that it is an appropriate means to address this type of barrier 4 5 Anti-discrimination legislation establishes an enforceable right to be free from this type of inequality.46 For a right to be exercised, there must be a means to identify a contravention. Canadian anti-discrimination legislation is complaint-driven. That is, the process is triggered when someone, not necessarily the victim, files a complaint alleging discrimination. In the case of overt differential treatment based on a prohibited ground, this is not generally a heavy burden. The discriminatory act is easily identified and all that is required is for someone to contact the human rights agency to inform it of the alleged contravention. However, for several reasons, that burden may weigh heavily on some people with disabilities. First, a 4 2 See, for example, Human Rights Code, R.S.O. 1990, c. H-19, s. 13 [Ontario Code]; BC Code, supra note 20, s. 7. 4 3 Jerome E. Bickenbach, "Minority Rights or Universal Participation: The Politics of Disablement", in M. Jones & L. A. Basser Marks, eds., Disability, Divers-Ability and Legal Change (London: Kluwer Law International, 1999) 101 at 109. 4 4 There is an extreme libertarian view that opposes any constraints on individual action: see, for example, Richard A. Epstein, Equal Opportunity or More Opportunity? The Good Thing about Discrimination (London: Civitas for The Institute for the Study of Civil Society, 2000). That view has not been accepted in Canadian law. 4 5 Jerome E. Bickenbach, "Disability and Equality" (2003) 2 Journal of Law and Equality 7 at 11. 46 InSeneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181, the SCC confirmed that anti-discrimination is the appropriate mechanism to exercise a claim for discrimination. In particular, it held that there is no tort of discrimination. There are, however, other mechanisms to address conduct that could be described as discrimination, such as hate crimes or assault. A discussion of those mechanisms is beyond the scope of this thesis. 146 person may be unaware of the right, either because he/she lacks access to information about the right or has insufficient cognitive ability to understand the right. Second, the person may lack the ability to communicate the allegation. And third, the person may be in a position of relative powerlessness in which he/she is dependent on the assistance of someone in a position of power who may be the cause of the discrimination. These barriers are reflected in the under-representation of people with serious disabilities in the pool of complainants in disability cases that proceed to hearing.47 For these reasons, reactive complaint-based model may not be an effective means for the most vulnerable people with disabilities to achieve equality. One means to ameliorate this problem is to allow other people to file complaints on behalf of the victims. Legislation may allow individuals to file on behalf of others48 or allow the Human Rights Commission to file a complaint.49 In either case, the overt prejudice must be identified before a complaint can be filed; therefore, this is only a partial solution. If the affected individual is unable to recognize the discrimination and it is not observed by anyone else, permitting others to file a complaint will not assist the victim. Moreover, even i f recognized, the barrier must be communicated to the Commission, which will generally have no independent knowledge of the discrimination. The ability of a Commission to file complaints is therefore unlikely on its own to have a significant effect. To achieve equality for those who are most vulnerable or most seriously disabled, more proactive measures are needed to identify barriers that are based on individual bias. 4 7 Judith Mosoff, "Is the Human Rights Paradigm 'Able' to Include Disability: Who's In? Who Wins? What? Why?" (2000) 26 Queen's L.J. 225 at 263-265. 4 8 See, for example, BC Code, supra note 20, s. 21; Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 40 [CHRA]. 4 9 See, for example, Ontario Code, supra note 42, s. 32(2); CHRA, ibid., s. 40(3). 147 Proving Discrimination Once a possible contravention is identified, there must be a process for determining whether the complaint has merit. Like all cases, overt discrimination requires determining whether the alleged conduct occurred and, i f so, whether it constitutes discrimination. That requires a fact-finding process and a legal determination. Where the allegation is of overt conduct, fact-finding is relatively straightforward. If the conduct is not admitted, evidence from those who were in a position to observe the conduct will be helpful. If there are no witnesses other than the parties, evidence relevant to credibility will be needed. Evidence of similar facts is often led in harassment cases; for example a complainant alleging employment harassment may lead evidence from other individuals who experienced similar harassment while in the respondent's employ. None of this requires broad investigatory powers. There must be some ability to obtain the evidence of witnesses and to test their truthfulness. A subpoena power and the right to examine and cross-examine will be sufficient for most cases of overt discrimination. The initial fact-finding need not be quasi-judicial; most Canadian jurisdictions have a preliminary administrative process in which staff with investigatory powers determine whether there is sufficient evidence of a contravention to warrant a more formal process.50 Whether an administrative or quasi-judicial process is followed, it must be consistent with the applicable principles of administrative fairness or natural justice. See, for example, CHRA, ibid., s. 44. 148 At some point a determination must be made on the merits of the complaint. This may be done administratively or quasi-judicially. In Canada, the most common approach has been to use administrative procedures to screen out those cases with little or no merit and send the remainder to a formal hearing.51 Generally that hearing is conducted by an independent tribunal.52 The nature of the process is not important for the purpose of achieving equality; what matters is its effectiveness. Its effectiveness is determined by its ability to make a fair determination and to provide an effective remedy. In cases of overt direct discrimination, the determination is relatively straightforward. The contravention is, by definition, apparent. The nature of the conduct establishes both that there was discrimination and that it was on a prohibited ground. For example, in Cavallin,53 proof that a waitress said that the restaurant did not want to serve mentally retarded people was sufficient to establish a contravention. There was no need to establish why she said it; that is apparent from the conduct. If the trier of fact finds that the complainant has established that the conduct occurred as alleged, there is no legitimate non-discriminatory excuse. The conduct occurred and on its face it is discriminatory. The only defence therefore is reliance on a statutory exemption such as a BFOR. Although such defences may arise in cases where the complaint is based on individual bias or prejudice, they are more likely to arise in the context of exclusionary practices and will be discussed in that section. 5 1 See, for example, Ontario Code, supra note 42, s. 36. 5 2 Under the Human Rights Act, S.B.C. 1984, c. 22, the administrative and quasi-judicial functions were conducted by the same body, the Council of Human Rights. The Council established internal procedures to ensure that the person who performed the quasi-judicial function was not involved in the administrative functions. I will return to the issue of independence in the next chapter. 53 Supra, note 37. 149 Righting the Wrong Thus, in cases of overt direct discrimination other than exclusionary practices, once the prima facie case is established, there is generally little left to do except consider the consequences of the contravention. In the absence of a defence, the focus turns to remedy. What outcome is necessary to achieve equality? Clearly, part of the desired outcome must be to stop the discriminatory conduct and prevent it from happening again. Additionally, the effects of the unequal treatment must be ameliorated. The Supreme Court of Canada has accepted that the purpose of anti-discrimination legislation is remedial, not punitive.5 4 So decision-makers must have the power to order that the wrong-doer cease the conduct and not do it again. They must also have the power to make the victim whole. Such powers are routinely granted in anti-discrimination legislation.55 But that is not enough to achieve equality. It is also important to prevent other wrong-doers from engaging in the same conduct. The legislation prohibits such conduct, and in cases of overt discrimination there is no ambiguity about whether the conduct contravenes that prohibition. Therefore, issuing an order prohibiting what is already prohibited would not appear to serve any useful purpose. Moreover, to control the conduct of other wrong-doers, the decision-maker would require the power to make orders affecting parties not before the tribunal. This is an important issue to which I will return in a later section. For now, it will suffice to note that anti-discrimination agencies do not have the power to make orders binding parties that are not before the tribunal. Therefore, i f equality requires that non-parties be prevented from engaging in the type of overt direct discrimination discussed here, some other mechanism must be found. Education provides one such mechanism. The publication of the decision, either through the 5 4 See Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R 84 at para. 13. 5 5 See, for example, BC Code, supra note 20, s. 37; Ontario Code, supra note 42, s. 41. 150 mainstream media or through other means serves that purpose. Reports of the consequences of a decision, which usually include monetary compensation, may persuade those who engage in overt discriminatory practices to cease those practices.56 Generally public education is part of the mandate of anti-discrimination agencies, and the publication of decisions is important in fulfilling that mandate. Most complaints are resolved without a hearing, often through mediation or conciliation. From the early days of human rights commissions, such resolutions have been seen as an integral component of anti-discrimination enforcement. Describing the enforcement of the first Ontario Human Rights Code,51 Eberlee and Hi l l stated: "Every effort is made to conciliate the complained-of matter and to obtain a settlement."58 Mediation continues to be an effective tool for resolving many discrimination complaints.59 It is less clear that mediation is an effective tool for achieving equality. The parties are not limited in their remedial approach; mediation offers the possibility of wide-ranging and creative solutions to removing barriers to equality. On the other hand, they are not required to agree to any particular measures, and the resolution of the dispute may allow the barrier to remain intact. Most settlements are confidential; therefore, it is difficult to assess whether mediation achieves equality as effectively as it resolves disputes. Further consideration of the 5 6 A common complaint about Canadian human rights agencies is that the monetary awards are typically too low to have much deterrent effect. Although damages to compensate for emotional injury remain relatively low ($10,000 is at the high end), damages for lost income are increasing and may exceed $100,000: see Bolster v. B. C. (Min. of Public Safety and Solicitor General), 2004 BCHRT 32 (judicial review petition pending) and Hutchinson v. B.C. (Min. of Health), 2004 BCHRT 58 (judicial review petition pending). 5 7 S.O. 1961-62, c. 93. 5 8 T.M. Eberlee & D. Hill, "The Ontario Human Rights Code" (1964) 15 U. of T. L.J. 448 at 449. 5 9 See Philip Bryden and William Black, "Mediation as a Tool for Resolving Human Rights Disputes: An Evaluation of the B.C. Human Rights Commission's Early Mediation Project" (2004) 37 U.B.C. L. Rev. 73. 151 effectiveness of mediation is beyond the scope of this thesis.60 It is clear, however, that mediation and other alternate forms of dispute resolution will remain an important part of any anti-discrimination enforcement model. Whatever their merits for achieving equality, their absence would require that systems that now have difficulty managing their caseload in a timely manner carry an even heavier burden. (ii) Covert Identifying a Barrier To this point, I have been addressing inequality caused by overt expressions of prejudice. For grounds other than disability, such as race or religion, prejudice is rarely displayed openly. One of the results of public education programs concerning discrimination and of media attention to human rights decisions is that prejudiced individuals now are likely to know that it is unacceptable to express their beliefs openly. Such individuals are more likely to engage in covert discrimination. On grounds other than disability, therefore, discrimination complaints frequently address covert discrimination. However, a review of Canadian human rights decisions reveals few cases that address covert discrimination against people with disabilities. It is possible that this is because, contrary to the views of disability rights advocates, prejudice against people with disabilities is relatively rare.61 A more likely explanation, in my view, is that prejudice against people with disabilities is more acceptable than on other grounds and, therefore, more likely to be expressed openly. For example, employers frequently admit that they deny opportunities to people with disabilities based on 6 0 The ongoing study of Professors Bryden and Black may shed light on the question of the effectiveness of mediation in achieving substantive equality. 6 1 It is also possible that Commissions tend to dismiss such cases on the ground of inadequate evidence rather than refer them to hearing. An assessment of this possibility would require an empirical analysis of the Commission screening process that is beyond the scope of this thesis. 152 their perceived (in)ability to perform a particular job. Such expressions of discrimination against people with disabilities do not bring the immediate public condemnation that a similar expression based on race or religion would bring. Covert discrimination on the basis of disability is rare because it is unnecessary. Though rare, covert discrimination on the basis of disability certainly exists. Moreover, as the reality of the burden of the justification defence, as described in Meiorin,63 becomes clearer, there may be greater motivation to disguise a discriminatory intent behind covert practices. Therefore, it is important to consider the powers and procedures necessary to remove barriers created through covert discrimination against disabled people. The challenge raised by covert discrimination is one of proof. In cases of direct discrimination, it is necessary to establish that the conduct was motivated by an intention to discriminate on a prohibited ground. In overt cases, that motivation is evident by the conduct itself; in covert cases it must be unveiled. In the following section, I address the administrative powers and procedures required to expose covert discriminatory barriers. Proving Discrimination The burden, as in other discrimination cases, is on the complainant to establish a prima facie case. As discussed above, the test described in Shakes v. Rex PakLtd.64 is commonly used for establishing a prima facie case. That test illustrates a problem of proof in covert discrimination cases. The test requires that the complainant establish that he/she was 6 2 Gooding, supra note 2 at 68, refers to an American case, Smith v. Barton, 914 F.2d 1330 (1990), in which the judge noted that there are few cases in which defendants deny that they relied on the complainant's disability, claiming instead that the disability rendered the person unsuitable for the job. 63 Supra note 22 and accompanying text. 64 Supra note 18. 153 qualified for the position, was rejected, and that the person hired was no better qualified but without the complainant's distinguishing feature. The third part of the test requires evidence of the successful candidate's qualifications and personal characteristics (such as race, disability or gender). That is not information that would normally be in the possession of the complainant. Nor is it information that an employer is likely to divulge unless compelled to do so. 6 5 Therefore, to be effective, this test requires a mechanism to compel employers to disclose information about the competition process and, in particular, the qualifications and characteristics of the successful applicant(s). In most Canadian jurisdictions investigators have sufficiently broad legislative powers to compel production of this information. For example, under the Canadian Human Rights Act: ... an investigator with a warrant ... may, at any reasonable time, enter and search any premises in order to carry out such inquiries as are reasonably necessary for the investigation of a complaint66 [and] may require any individual found in any premises entered pursuant to this section to produce for inspection or for the purpose of obtaining copies thereof or extracts therefrom any books or other documents containing any matter relevant to the investigation. There are other sources of evidence from which an inference can be drawn that discriminatory practices occurred. In some cases, it may be drawn from statements that do not express a discriminatory act, or intention to act, but indicate a prejudiced attitude.68 Evidence of such an attitude does not directly prove the discriminatory act; however, it is circumstantial evidence consistent with discrimination. Similarly, questions of an applicant 6 5 In a growing number of circumstances, an employer is prohibited by freedom of information and privacy laws from divulging private information unless compelled to do so. 66%>ranote 48, s. 43(2.1). 67 Ibid., s. 43(2.4). 6 8 Sometimes, the statements may themselves be evidence of direct discrimination, such as when harassment is alleged. However, here they are being used as circumstantial evidence of another discriminatory act such as a refusal to hire. 154 related to a proscribed ground do not prove that the person asking the questions engaged in discrimination;69 rather, they are circumstantial evidence of a discriminatory intent. If the statements were made to the complainant, or are otherwise within the complainant's knowledge, the complainant can provide this evidence to the fact-finder without difficulty and investigatory powers are not required. However, sometimes statements are made to personnel unknown to the complainant or are recorded on or in documents. That information will likely remain undisclosed unless there is some mechanism to compel production of it through an investigation or discovery process. One of the earliest methods of demonstrating a discriminatory practice was "testing". This involves setting up a situation in which people who are similarly situated except for some distinguishing characteristic, such as disability, seek the same opportunity at about the same time. For example, researchers Frances Henry and Effie Ginzberg used testing to assess racial discrimination in employment in Ontario.70 They ran two tests. In one, two teams of testers, matched for age, sex, education and employment experience, applied for advertised positions. The only major difference between them was race. In the second test they used testers with "non-Canadian accents" and "ethnic sounding names" to determine whether they would be treated differently over the phone by employers. The tests provided "clear evidence of significant levels of racial discriminations."71 6 9 However, such questions may be defined as discrimination in the applicable anti-discrimination legislation: see, for Ontario Code, supra note 42, s. 23(2). 7 0 Frances Henry and Effie Ginzberg, "Who Gets the Work: A Test of Racial Discrimination in Employment" (the Urban Alliance on Race Relations and the Social Planning Council of Metropolitan Toronto, 1985). 71 Ibid, at 5. In a related project, researchers who surveyed employers to elicit management perspectives on discrimination, found further evidence of racial discrimination: Brenda Billingsley and Leon Muszynski, "No discrimination here?: Toronto employers and the multi-racial workforce" (Social Planning Council of Metropolitan Toronto and Urban Alliance on Race Relations, 1985). 155 Testing can be described as follows: Testing can be considered as a controlled experiment. For example, i f an employer is suspected of discrimination, two black persons might be assigned to apply for the job advertised. If the blacks are told the job has been taken, two white persons would be sent immediately to make application. If all relevant factors - such as qualifications, dress, manner, age, etc. - are uniform among blacks and whites but only a white is hired or allowed to file an 7 9 application, it is clear that a legitimate complaint exists. The results of such a test, as with any experiment, are most persuasive i f the test has been properly conducted. In situations where it is possible to act quickly, i f a person with a disability is refused an opportunity, a simple test could be conducted by having someone apply with the same qualifications and no discernible disability. In practice testing is rarely done by Canadian human rights agencies. That may be partly due to perceptions that tests are deceptive, and therefore a practice with which government agencies might not want to be associated. Tarnopolsky addresses that concern: [Ajlthough test cases may involve deception to the extent that the person attempting to obtain the evidence may not want the accommodation or the employment which he asks for, the deception does not diminish the veracity of the fact of discrimination. "The proponents of test cases are not trouble-makers. They are trouble finders." If the trouble were not there in the form of a discriminatory act, they would not find it. 7 4 It may also be that testing is rarely a viable option for human rights agencies. To be useful as evidence to prove an individual complaint, a test must be conducted very soon after the 7 2 Daniel G. Hill, Human Rights in Canada: A Focus on Racism (Canadian Labour Congress, 1977) at 34. 7 3 Testing may be accepted as evidence even if the process falls short of the standard of a controlled experiment: see, for example, in Najari v. Cook (1992), 18 C.H.R.R. D/232 (B.C.C.H.R.). The quality of the test may be related more to probative value than admissibility. 7 4 Tarnopolsky, supra note 6 at 574, citing A. Borovoy, Human Rights and Racial Equality - The Tactics of Combat (1962) at 14. 156 alleged discriminatory act. It must be done while the opportunity is still available, and before the wrong-doer has notice of the complaint. It would be an unusual case in which a human rights agency could respond to a complaint quickly enough to obtain useful results. Testing may, however, be a useful technique i f an agency wishes to be more proactive. For example, in Davis v. Fankowski, the respondent was suspected of refusing to rent cottages to Blacks. The Ontario Human Rights Commission supported the complainants in running a test, the results of which were accepted by a Board of Inquiry (with some misgivings about the propriety of testing) as proof of racial discrimination. Such evidence could either be used to support a complaint, including one filed by the commission in those jurisdictions having such a power, or to launch a public education program. Testing can be conducted by advocates as effectively as by agents of a government agency. Whether conducted by advocates or government agents, testing requires no legislated powers. An inference sufficient to establish a prima facie case may also be drawn from statistics showing a pattern or standard practice of discrimination. In Blake v. Min. of Correctional Services the Board of Inquiry observed: "Because discrimination is often covert and intent to discriminate difficult to prove, a trier of fact must be sensitive to obvious inferences that may be gleaned from statistics." Statistics can be powerful circumstantial evidence from which an inference of discriminatory practices can be drawn.7 7 They are used either to infer that an individual or group is the 7 5 This unreported decision is described in Vizkelety, supra note 12 at p. 147, n. 55. 7 6 (1984), 5 C.H.R.R. D/2417 (Ont. Bd. Inq.) at D/2426. 7 7 For a discussion of the use of statistics to prove direct discrimination in Canadian law, see Vizkelety, supra note 12 at 156-162. For an American analysis, see Baldus & Cole, supra note 4 generally. 157 victim of direct discrimination based on a prohibited ground, or to demonstrate that a policy has an adverse effect on an individual or group because of their membership in a protected category. Later in this chapter, I will return to the use of statistics to prove adverse effect discrimination. When used to prove direct discrimination, statistics are led to show a difference between the number of members of the protected group that successfully obtain the opportunity - usually employment - and the number that, statistically, would be expected to succeed i f the opportunities were fairly distributed. The outcome statistics wil l be compared to some comparator such as the applicant pool, the available workforce, or the community generally. A difference in the representation of members of the protected group is indicative of discrimination. However, considerable caution must be used in assessing the weight of such evidence, and the reliability and significance of the statistics must be considered. Expert evidence is usually necessary to assist in interpreting the statistics. Statistics will be most persuasive when they are supported by other evidence of discrimination. It is open to the respondent to contradict such statistics by providing other more reliable statistics or by proving that factors other than discrimination may explain the differences. Statistics are generally more useful to prove discrimination against a group than an individual. 7 8 Where the statistics demonstrate that a group is significantly underrepresented among successful candidates, all else being equal, it is logical to infer that membership in the group was a factor contributing to the difference. However, it is not logical to infer that, because a group is being discriminated against, a decision affecting a particular individual is influenced by that discriminatory factor. It is not sufficient for an individual to prove that 7 8 Baldus & Cole, ibid, at 5 and 34. 158 he/she belongs to a group that is being discriminated against; there must also be evidence that the individual was similarly victimized. If, for example, the individual was screened out of a competition for failure to meet bona fide minimum qualifications that were consistently applied, that person is unlikely to succeed in an individual complaint of discrimination regardless of the statistics. Nevertheless, even in individual cases, statistics are useful. Statistics demonstrating a significant under-representation of a particular group in an employer's workforce may be sufficient to justify a full investigation by an agency of a complaint by a member of that group. In the context of a hearing, such statistics might be sufficient to call for an explanation by the employer. Moreover, statistics in combination with other circumstantial evidence are useful evidence from which to infer discrimination in the absence of other apparent reasons for the distinction.79 For people with disabilities, however, statistics are of limited value. There is little information available about the representation of people with disabilities in the workforce. What information there is generally groups people with disabilities together; they do not distinguish degrees of impairment or categories of disability. People with disabilities are a diverse group, and the social response to impairment will vary based on the degree and type o n of impairment. An employer may be comfortable hiring people with spinal cord injuries but not blind people, or will hire people with cerebral palsy unless the impairment affects their speech. Because the social response to impairment will vary based on the degree and Ibid, at 35-37. For a discussion of the diversity of disability, see Chapter III above at note 116 and accompanying text. 159 type of impairment, finding appropriate samples from which meaningful inferences can be drawn is difficult i f not impossible.81 To the extent that statistics are useful to identify inequality, all of the necessary data is not generally available to complainants. Complainants will have access to any public (or "stock") data concerning the workforce or community-wide representation of their group. They will not normally have access to the demographics of applicant pools for specific opportunities or of those who have succeeded in the opportunity. Access to the applicant-flow data will require some power or authority to gather the information. That power may be provided through the investigatory powers in anti-discrimination legislation, or it may be addressed in other legislation such as employment equity legislation. In either case, i f the data is available, the analysis of the data requires special skills but not special powers. Similar fact evidence is frequently admitted as circumstantial evidence of differential treatment, particularly in harassment cases. Similar fact evidence is evidence of conduct on other occasions that is similar to the conduct that forms the basis of the complaint. For example, evidence that other disabled employees were subjected to derogatory name-calling may be admitted to prove a pattern of discriminatory conduct towards people with disabilities. The admissibility of such evidence is often in dispute; however, generally its 8 1 For a discussion of the problem of using statistics to demonstrate bias against people with disabilities, see Gooding, supra note 2 at 68-69. 8 2 Typically, employment equity legislation requires employers to compile data on the representation of target groups in its workforce and to publicly report that data. For example, under federal employment equity legislation, employers must provide reports on the numbers of employees in each of the target groups, one of which is people with disabilities: Employment Equity Act, S.C. 1995, c. 44, ss. 17 & 18. 160 admissibility will turn on its probative value.8 3 For people with disabilities, the same problems of comparison arise in finding similar fact evidence as in finding statistical evidence. That is, to have much probative value, the similar conduct must have happened to people with similar impairments.84 Producing similar fact evidence does not require any powers beyond those necessary to obtain information from any witness. However, locating such witnesses may be challenging for a complainant who does not have any access to a respondent's records or personnel. Often, such evidence is from former employees. Unless an employer is compelled to produce lists of past employees, or other employees can be asked for such a list, those witnesses are likely to remain unknown. Righting the Wrong If a contravention of the legislation is established, covert discrimination raises the same remedial issues as overt discrimination. (iii) Summary There can be no doubt that one of the purposes of Canadian anti-discrimination legislation was, and is, to eliminate discriminatory barriers that are based on individual prejudice. When displayed overtly, such barriers are relatively easy to identify, prove and remedy. When the discrimination is covert, identification and proof are more difficult. Some process is necessary to enable the complainant to obtain the information needed to prove the complaint. 8 3 For a discussion of cases in which the issue of admissibility was discussed see Vizkelety, supra note 12 at 148-156. See also Holmes v. LBE Holdings Inc. (1996), 30 C.H.R.R. D/231 (B.C.C.H.R.). 8 4 In practice, adjudicators may be willing to accept evidence that falls below this standard. In Legge v. Princess Auto & Machinery Ltd. (1983), 4 C.H.R.R. D/1339, a Manitoba Board of Inquiry accepted evidence • that the employer had employed other employees who had "various disabilities" to rebut evidence that it had discriminated against a person with asthma. 161 In most Canadian jurisdictions, that is achieved through broad investigatory powers. Under the direct access model in British Columbia, it is achieved through disclosure rules. (I will consider that model more closely in the next chapter.) Remediation of barriers based on individual prejudice will generally require the power to order the wrong-doer to cease and desist and to return the victim to the position he/she would have been in i f the discrimination had not occurred. These powers are routinely granted to anti-discrimination adjudicators. Although the powers necessary to address barriers based on individual prejudice are incorporated into most Canadian anti-discrimination systems, for people with disabilities, that may not be sufficient to have a significant effect on equality. First, their diversity raises particular problems of proof; and second, people with disabilities are more likely to encounter other forms of barriers to equality, such as exclusionary classifications. (b) Exclusionary Classifications Cases involving covert prejudice against people with disabilities are rare; cases addressing classifications that expressly exclude people with disabilities are common. "Exclusionary classifications" are rules that, on their face, deny opportunities to people with disabilities. Typically they are policies, written or unwritten, that describe specific impairments that, i f identified, will lead to exclusion from an opportunity. For example, licensing standards may exclude people with poor peripheral vision, 8 5 or police officers may be required to meet specific vision standards.86 Such standards directly discriminate against people with visual impairments. For the purpose of this section, I am referring only to those classifications that refer explicitly to specific impairments. Neutral policies, such as a requirement for a driver's 8 5 See Grismer, supra note 23. 8 6 See Cotterallv. Vancouver Police Board (1994), 26 C.H.R.R. D/510 (B.C.C.H.R.). 162 licence, may have the same exclusionary effect; however, they raise some different issues which I will address in the next section. Exclusionary classifications are a form of overt direct discrimination. They constitute express differential treatment and, therefore, are an inequality even within a formal conception of equality. The motive behind such classifications may not be malicious - it may be based on a sincere belief in the operational requirements of the business. On the other hand, that belief may be based on prejudice or stereotypes, in which case it is conceptually no different than the discrimination discussed in the previous section. As discussed above, to succeed with a BFOR defence, a respondent must show that the classification was implemented in good faith. Proof of prejudice would therefore vitiate the defence. Proving prejudice in the context of an exclusionary classification would have the same requirements as for other cases involving individual bias. For the purpose of this section, I will assume the exclusionary classification is implemented in good faith. The term "exclusionary classifications" suggests standards that are designed with some forethought to apply to a group of people; nevertheless, I will include situations where the classification appears to have been developed to address one particular complainant. For example, in Cameron v. Nel-Gor Castle Nursing Home*1 the complainant, who had three fingers on her left hand that were shorter than normal, was denied a nursing job because of concerns about her ability to lift patients safely. The requirement that nurses not have fingers shorter than normal was created to address the employer's safety concerns about Ms. Cameron. It is, of course, possible - even likely - that such "one-off classifications are 8 7 (1984), 5 C.H.R.R. D/2170 (Ont. Bd. Inq.). 163 manifestations of individual bias or prejudice. However, as discussed above, courts and tribunals have been generally willing to accept that such classifications are implemented in good faith and apply a BFOR analysis to the defence. Therefore, although a classification was created in response to a particular situation, the analysis and proof required are the same as for classifications that exclude all members of a group, some of whom may be unknown or unidentified at the time the classification is introduced. In Cameron, the Board of Inquiry, Peter Cumming (now Cumming, J.), identified the equality issues raised by that complaint, and by other exclusionary classifications: First, there is an objective of securing for the handicapped person equality of opportunity with respect to employment. Everyone deserves the same opportunity and chance to make the most of life, regardless of physical or mental handicap. A corollary is to require an employer to make a decision respecting employment of a handicapped person based upon a fair and accurate assessment of her true ability, and not based upon a stereotype or misconception about her handicap. Having a handicap means not being able to do one or more important things that most people can do. The law cannot make a person's handicap disappear, of course, but it does insist that every person receive a fair chance to show what she is able to do, taking into account her ability. The law now protects every person from being pre-judged because of handicap by an employer. Equal opportunity for someone with a handicap means equal opportunity to do the things she can do effectively and safely. The law does not impose any undue hardship upon the employer, or require that a person who presents a danger to the safety of the employee or others, or the employer's property, be employed. In other words, the law recognizes that exclusionary classifications are barriers to equality for people with disabilities. However, the law also recognizes that sometimes such barriers are necessary despite their discriminatory impact. Ibid, at paras. 18390-18391. 164 Identifying a Barrier Identifying exclusionary barriers to equality is rarely difficult. Generally, the exclusionary classification is provided to the complainant as the reason for the denial of opportunity. The person or organization making the denial will , in most cases, admit that it is based on the disability. However, that admission is usually accompanied by a claim of justification or BFOR. Proving Discrimination Because exclusionary classifications are generally admitted or are readily apparent, proving a prima facie case is simple. Generally, it can be established without any powers of investigation or discovery. However, as discussed above, the law allows exclusionary classifications that are necessary for, among other things, reasons of safety or efficiency. The burden of proof of a justification defence is on the person seeking to justify the exclusionary classification.89 That person will have access to the information that it needs to do so, assuming such information is available. Therefore, no powers or procedures are necessary to facilitate that process. Frequently, some expert evidence will be required. The person seeking to justify the classification is able to retain and instruct an expert without any powers of compulsion. Some mechanism must be available to determine whether the information supporting the justification is sufficient to meet the legal test.90 There must be an opportunity for the 89 Etobicoke, supra note 29 at para 6893. The burden is the ordinary civil standard. (See also Zurich Insurance Co. v. Ontario (Human Rights Comm.) (1992), 16 C.H.R.R. D/255 at D/263 (S.C.C.) in which the Court stated that exceptions to the legislation are to be interpreted narrowly.) 9 0 That test is described above at note 23 and accompanying text. 165 respondent to advance its justification and for an independent assessment of the merits of the justification. In most Canadian jurisdictions, that is done initially through an inquisitorial process in which a commission investigator gathers information that either supports or contradicts the defence. In those jurisdictions, the legislation provides the investigatory powers needed to obtain information to respond to the justification. The commission then decides whether the matter should proceed to a formal hearing where the justification defence is tested through an adversarial, quasi-judicial process. For that process to be effective, there must be an opportunity for someone to present evidence to rebut the justification evidence. In most jurisdictions, the human rights commission has carriage of the case i f it goes to hearing.91 In jurisdictions such as British Columbia which operate on a direct access model, the person alleging discrimination (or a representative) is responsible for mounting the response to the defence.92 The direct access model raises several challenges for those seeking to achieve equality by challenging exclusionary barriers. They have two goals: to demonstrate that the classification is unnecessary; or, in the alternative, to demonstrate that accommodation such as individualized assessment is possible without imposing an undue hardship on the respondent. To achieve those goals, they need to know the basis for the justification. Where the respondent relies on an expert report, disclosure may be provided for in the agency's rules or in separate legislation.93 In the absence of such legislation, administrative tribunals 9 1 See, for example, Ontario Code, supra note 42, s. 39(2). 9 2 The direct access model is discussed in the next chapter. There are now two Canadian jurisdictions, British Columbia and Nunavut, operating under a direct access model. 9 3 See, for example, Evidence Act, R.S.B.C. 1996, c. 124, ss. 10 & 11. 166 have inherent power over their procedures.94 A process requiring disclosure of the expert report, or any other evidence supporting the justification defence is, therefore, within the inherent powers of most tribunals. However, the complainant must also be able to challenge that evidence. To be effective, that may require an understanding of the history, purpose and structure of the organization that has the classification, the process leading up to the classification, and the motives of the people involved. Much of that could be obtained through cross-examination; however, cross-examination will be most effective when it is done by a well-informed cross-examiner. Further, an expert opinion may be necessary in response to the justification. The expert may require information about the history, purpose and structure of the organization. So, under an adversarial model, discovery or disclosure mechanisms are needed to ensure an even playing field. Most experts charge for their opinions. And i f lawyers or investigators must be hired to obtain evidence to respond to the justification or to represent the complainant, they too will charge for their services. One of the features that identifies people with disabilities is their relative poverty. Most wil l not have the funds to mount a serious challenge to an exclusionary classification. To be effective, the issue of cost must be addressed. In most Canadian jurisdictions complainants are spared this cost. Human rights commissions will bear any costs incurred during the investigation phase, and i f the commission refers the matter to hearing it will assume carriage, and therefore the costs, of the complaint.95 In British Columbia, as discussed in Chapter V , the costs are addressed through the equivalent of legal aid funding. 94 Prassadv. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560. 9 5 If, however, the commission does not refer the case to hearing and dismisses it, the complainant may face costs if he or she decides to seek judicial review of the commission's decision. 167 Righting the Wrong To be effective, the legislation must provide a remedy for the inequality. That means striking down the rule i f its necessity has not been justified or requiring some accommodation, such as individual assessment, i f that does not create an undue hardship. Under anti-discrimination legislation tribunals generally have sufficient powers to do either.96 97 Compensation to make the individual victim whole is provided for in Canadian legislation. In addition to compensating the victim, the victim must be given the opportunity that was lost i f the victim still seeks it. 9 8 However, an individual remedy may not remove the barrier for other people with disabilities. If the exclusionary classification remains but with a required individual assessment, each person with the excluded disability will be entitled to an individual assessment under that classification. However, i f the assessment is not given, or is unfairly given, often the only recourse is to file a complaint and seek another determination and order.99 Moreover, the determination only applies to the particular classification. The organization may continue to apply other exclusionary classifications until they too are the subject of complaints. A series of cases involving driver's licences is illustrative: In Grismer,100 the Supreme Court of Canada determined that the respondent had not established 9 6 For example, in Etobicoke, supra note 29, the Board of Inquiry found that a mandatory retirement rule was not a BFOR and ordered reinstatement, and in Grismer, supra note 23, the Human Rights Council required an individual assessment. Both decisions were upheld by the Supreme Court of Canada. 9 7 In contrast, compensation is not available to individuals under Title III of the Americans with Disabilities Act. This was part of a "fragile compromise" necessary to obtain Congressional approval of the Act: Ruth Colker, "ADA Title III: A Fragile Compromise", in Leslie Pickering Francis & Anita Silvers, eds., Americans with Disabilities: Exploring Implications of the Law for Individuals and Institutions (New York: Routledge, 2000) 293. 9 8 In many cases, due to the passage of time, the complainant is no longer interested in the opportunity that was lost. 9 9 The order may require that the respondent refrain from committing similar infractions. However, in most cases, enforcement of the order requires an application to court, which may be expensive and cumbersome. Moreover, the court will require some proof that the conduct is sufficiently similar to contravene the order. 100 Supra note 23. 168 that individual assessment of a particular visual impairment was an undue hardship and upheld the order that such an assessment be conducted. In Hussey v. British Columbia (Ministry of Transportation) , m the complainant was denied a licence by the same respondent because he could not meet the applicable hearing standard. No individual assessment was offered. The complaint was upheld. Arguably, at the time there was some doubt about the legal requirements due to an appeal of Grismer. However, in Bolster,102 the same respondent was again before the Tribunal to defend its medical standards, this time because the complainant was unable to meet the visual acuity standards for a driver's licence. Under a complaint-driven model, it is difficult to imagine an order that could be crafted that would prevent this case-by-case approach. Since the justification for each standard is different, fairness requires that in each case the respondent be given an opportunity to present evidence of its justification for each practice to the adjudicator. Moreover, an order that requires one organization to either eliminate an exclusionary classification or conduct individual assessments does not apply to organizations that are not before the tribunal. A fundamental principle of administrative justice is that a tribunal cannot issue an order affecting the interests of a party unless that party has been given an opportunity to be heard.1 0 3 Absent an express authority to add a party, a human rights tribunal does not have the power to add a party to a complaint.1 0 4 Although non-party organizations may decide that the principles apply equally to them and voluntarily apply the 1 0 1 (1999), 36 C.H.R.R. D/429 (B.C.H.R.T.). 102 Supra note 56. 1 0 3 See, for example, G. V.R.D.E.U. v. British Columbia (Council of Human Rights) (1993), 21 C.H.R.R. D/171 (B.C.S.C.) in which the Court held that the Council of Human Rights could not issue a consent order affecting the interests of union members without giving their union an opportunity to be heard. 104 C.U.P.E., Local 394 v. Crozier (2001), 39 C.H.R.R. D/136, 2001 BCCA 77. 169 decision, they are not required to do so. In fact, it may not be in their interests to do so. They may learn from the outcome of one case what evidence is necessary to justify their own conduct. For example, in Etobicoke, a mandatory retirement requirement was struck down by the Supreme Court of Canada because a BFOR was not established; in a subsequent case with similar facts, the Supreme Court of Canada accepted, based on less impressionistic evidence, that a similar standard was a B F O R . 1 0 5 Summary Exclusionary classifications are clearly a form of barrier that is intended to be covered by anti-discrimination legislation. If they were not, there would be no need for the statutory BFOR defence. Moreover, it is a type of barrier that is of particular importance to disabled people. Many, perhaps most, reported human rights decisions on the ground of disability address such classifications. The discrimination is overt and direct, and therefore relatively easy to prove. However, the defences are often technical. And the evidence required to rebut them may be difficult and costly to acquire. The information can be obtained through powers of investigation or disclosure. The cost must be addressed, either by providing the commission with the power to prosecute the complaint or by providing funding to the complainant. The issue of cost is therefore not so much a question of administrative powers as one of political will to provide adequate funds to enforce equality rights. The case-by-case, complaint-driven model can result in such classifications being struck down, which benefits all those people who would have been excluded by the classification. However, under this model, the classifications are only considered when they become the subject of a Saskatchewan (Human Rights Commission) v. Saskatoon (City), [1989] 2 S.C.R. 1297. 170 complaint, and must be considered one classification at a time. This remedial limitation is common to the barriers addressed in the following section. 4. Adverse Effect Discr iminat ion (a) Neutral Practices and Structural Barriers As discussed above, adverse effect discrimination occurs when policies or practices that are facially neutral and treat everyone the same have a disparate impact on members of a group because of some characteristic that is related to their membership in that group. Practices such as selection criteria or operational policies may be based on mainstream norms that reflect an unconscious social bias that exclude people with disabilities.1 0 6 These neutral practices are similar to the exclusionary classifications discussed in the previous section, except that they operate indirectly. These practices may be built into the organizational or physical structures of an institution. Whether the barriers are part of the organizational or physical structure, they arise, as Gooding says, "from the fact that tasks and workplaces have been constructed for able-bodied people, and as a result may be unsuitable for a disabled person without some form of alteration."107 These structures operate in both the physical and social environments and at all levels of society, from individual organizations to the institutions of government. Barriers that result from adverse effect discrimination do not fit comfortably into a formal conception of equality: the practices or structures do not treat people with disabilities differently than any other group, nor are they intended, at least on their face, to exclude 1 0 6 Gooding, supra note 2 at 72. w l Ibid, at 73. 171 people with disabilities. Indeed, for Bickenbach, such practices do not constitute discrimination in its core meaning and should not be addressed through anti-discrimination laws. 1 0 8 Some American theorists have sought to fit adverse effect disability discrimination within a formal conception of equality. One approach is to identify prejudice as the source of inequality. For example, Martha McClusky argues that prejudice is central to the problems people with disabilities face.1 0 9 She notes that courts view differentiation based on sex and race differently than disability-based differentiation. They are likely to view sex- and race-based differentiation as being caused by prejudice. In those cases, disparate impact (or adverse effect) analysis is used "to reach subtle forms of prejudice and the effects of past unequal treatment."110 She observes that, in contrast, most courts and commentators believe that physical difference related to disability is relevant to the ability to function in society; therefore, the cause of the relative disadvantage is the real physical differences rather than prejudice.111 Under this view, when disability is involved, the disparate impact model should be limited in its application "to avoid interfering with legitimate interests." Applying a feminist analysis, McClusky argues that the disadvantages associated with disability, 1 0 8 Bickenbach, "Minority Rights", supra note 43 at 109-110. 1 0 9 Martha T. McClusky, "Rethinking Equality and Difference: Disability Discrimination in Public Transportation" (1988) 97 Yale LJ . 863. Pervasive prejudice against people with disabilities is also central to the minority rights analysis of Harlan Hahn: for a recent example of Hahn's analysis see Harlan Hahn, "Disputing the Doctrine of Benign Neglect: A Challenge to the Disparate Treatment of Americans with Disabilities" in Leslie Pickering Francis & Anita Silvers, eds., Americans with Disabilities: Exploring Implications of the Law for Individuals and Institutions (New York: Routledge, 2000) 269. 1 , 0 McClusky, ibid, at 866. 1 1 1 Such a view may be reflected in Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241. In that case, the court observed that s. 15 of the Charter aims at eliminating discrimination based on stereotypical attitudes. It added, however, that for people with disabilities there was also an objective of fine-tuning society so that their "true characteristics" did not serve as headwinds to their inclusion in the mainstream. The court concluded that segregation may sometimes be protective of equality for people with disabilities and refused to adopt a rebuttable presumption that integration was in a child's best interests. 172 including access to transportation, are the result of widespread prejudice and able-bodied norms. Accordingly, the same adverse effects analysis should be used to identify subtle forms of prejudice against people with disabilities. Anita Silvers does not focus on prejudice; rather, she uses the language of unequal treatment to bring seemingly neutral practices within a formal model of equality.1 1 2 As discussed in the previous chapter, she argues that, when assessing equality of treatment, formal equality requires consideration of the "scope of the treatment's instrumentality"; that is, similar treatment is not equal treatment if people do not have similar instrumental options to pursue the opportunity. For example, an employer advertising a job opportunity is not treating every applicant equally i f the competition is held in a location that is physically inaccessible to some potential applicants, or i f it can only be reached by public transport that does not accommodate people with disabilities. In these circumstances, although treated similarly, applicants with disabilities do not have the same opportunities to pursue the job. For Silvers, 113 "formal justice is substantive", it provides people with similar instrumental options. These attempts to fit an adverse effect analysis into a formal conception of equality may be driven by judicial precedent in the United States. Americans are reluctant to recognize positive rights, such as welfare rights or affirmative action. 1 1 4 When positive rights, are recognized, such as in the Americans with Disabilities Act,115 they are narrowly construed.116 1 1 2 Anita Silvers, "Formal Justice" in Anita Silvers, David Wasserman & Mary B. Mahowald, Disability, Difference, Discrimination: Perspectives on Justice in Bioethics and Public Policy (Lanham, Maryland: Rowman & Littlefield Publishers, 1998) 13 at 126-127. For further discussion of Silvers' approach, see Chapter III above at note 92 and accompanying text. 113 Ibid, at 123. 1 1 4 The concept of positive rights is discussed above in Chapter II. 1 1 5 42 U.S.C. §12101 (1990). 173 There are, therefore, strategic reasons for describing barriers to equality as an infringement on negative rights. American courts have also shown a preference for formal rather than . substantive (or "material") equality.117 As a result, American disability rights advocates ... must justify a material equality statute [i.e., the Americans with Disabilities Act] in formal equality terms. [They] ... must show that the A D A ' s requirements to remove barriers and provide accommodation were really Congress's attempt to deter future intentional discrimination or remedy past intentional discrimination.118 Canadian courts have long recognized that a formal conception of equality is not sufficient to eliminate inequality, and that discrimination, as prohibited by anti-discrimination statutes, includes neutral practices that have an adverse effect based on a prohibited ground. In O 'Malley, the Supreme Court of Canada said: The Code aims at the removal of discrimination. This is to state the obvious. Its main approach, however, is not to punish the discriminator, but rather to provide relief for the victims of discrimination. It is the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination; i f its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory.119 And in Andrews, Mclntyre J. said: 1 1 6 For a discussion of the American reluctance to accept positive rights, and its effect on interpretation of disability rights, particularly under the ADA, see Patricia Illingworth & Wendy E. Parmet, "Positively Disabled: The Relationship between the Definition of Disability and Rights under the ADA", in Leslie Pickering Francis & Anita Silvers, eds., Americans with Disabilities: Exploring Implications of the Law for Individuals and Institutions (New York: Routledge, 2000) 3. 1 1 7 For a discussion of the American preference for formal equality, particularly in the context of disability rights, see, Arlene B. Mayerson & Silvia Yee, "The ADA and Models of Equality", in Mary Lou Breslin & Silvia Yee, eds., Disability Rights Law and Policy: International and National Perspectives (Ardsley, NY: Transnational Publishers, 2002) 283 at 287-294. 118 Ibid, at 291. 119 Supra note 3 at 546-47 [emphasis added]. 174 I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics o f t he i ndividual o r group, w hich h as t he effect o f i mposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. This view has been reiterated in a number of decisions including Meiorin, which concerned a neutral practice having an adverse effect.121 Under Canadian law, therefore, anti-discrimination laws provide an enforceable right to be free from such discrimination.1 2 2 There is no requirement that neutral discriminatory practices fit within a formal conception of equality. Similarly, it is recognized that structural barriers may constitute discrimination on the basis of disability. In 1980, Michael Huck, who relied on a motorized wheelchair, decided to watch a movie in a local theatre. The theatre had level access into the viewing area. However, once inside, he found that there were no areas in the normal seating that could accommodate a person in a wheelchair. He was told that he could either transfer out of his wheelchair into a regular seat or sit in an area in front of the seats closest to the screen. He did not consider either option acceptable and filed a human rights complaint. Eventually, his complaint reached the Saskatchewan Court of Appeal. Vancise J.A., writing for himself and Hall J.A., held that "[a]cts which are neutral on their face i.e., treating one as equal, are 120 Andrews, supra note 5 at 174. 121 Supra note 22. In Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, the Supreme Court of Canada found that a neutral practice that adversely affected deaf people contravened the Charter. 1 2 2 For a comparison of the Canadian and American approaches, see Mayerson & Yee, supra note 117. The distinction between the two approaches was expressly noted by the Supreme Court of Canada in Eldridge, ibid., in which the Court observed (at 616) that under the s. 15 of the Charter it "has staked out a different path than the United States Supreme Court, which requires a discriminatory intenHn order to ground an equal protection claim under the Fourteenth Amendment of the Constitution." 123 Canadian Odeon Theatres Ltd. v. Huck (1985), 6 C.H.R.R. D/2682 (Sask. C.A.). 175 prohibited i f they have the effect of continuing discriminatory practices",124 and determined that: The failure to provide Mr. Huck with a choice of places from which to view the movie is prejudicial treatment because of the complainant's disability and handicap. It makes little sense to provide access ramps and bathroom facilities for the physically handicapped and not to make provision for them to view the movie itself. 1 2 5 The Court upheld the Board of Inquiry's decision, which included an order that the theatre be renovated to include wheelchair seating in different areas of the theatre.126 Identifying a Barrier As discussed above, the complaint-based system through which the right to be free from discriminatory practices is enforced creates burdens for people with the most severe disabilities. That burden is exacerbated where the practices are neutral. The effect of the neutral practices may not be readily apparent. Some investigation will be necessary to determine whether there are practices that have an adverse effect and to identify those practices. A n enforcement system that is entirely complaint-driven and that provides for no proactive measures will fail to identify many barriers arising from adverse effect discrimination, particularly those affecting people who are most vulnerable. Proving Discrimination If a complaint alleges adverse effect discrimination, the complainant must establish a prima facie case that the practice has an adverse effect because of disability. In some cases, that is 124 Ibid, at para. 22189. 125 Ibid, at para. 22202. 126 Canadian Odeon Theatres Ltd. v. Huck (No. 2) (1981), 2 C.H.R.R. D/521 (Sask. Bd.Inq.) at para. 4741. 176 easily established. A policy requiring a driver's licence will have an adverse effect on a blind person because of the disability. A l l that is required is evidence that blind people cannot obtain driver's licences. In such cases, statistics are unnecessary to prove an adverse effect. In many cases the effect will be less clear. A particular practice may not adversely affect all members of the protected group, or it might affect some more than others. In many cases statistics will be helpful. Statistics may be used to demonstrate that a rule or practice disproportionately affects a particular group. In such cases, statistics show that the impugned rule or requirement selects applicants in a pattern that relates to a ground of discrimination. In the landmark case of Griggs v. Duke Power Co.}21 the U.S. Supreme Court considered the application of Title VII (the "Equal Employment Opportunity" part) of the Civil Rights Act of 1964.1 2 8 Chief Justice Burger stated (at pp. 429-30) that the objective in the enactment of Title VII was ... to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained i f they operate to "freeze" the status quo of prior discriminatory employment practices. Statistics were used to establish that a high school completion requirement and standardized 1 tests had a disproportionate effect on Blacks. 1 2 7 401 U.S. 424 (4th Cir. 1971). 1 2 8 42 U.S.C. § 2000e. 1 2 9 For a similar use of statistics in a Canadian case, see Chapdelaine v. Air Canada (1987), 9 C.H.R.R. D/4449 (Can.Trib); appeal of order at (1991), 15 C.H.R.R. D/22 (Can. Rev.Trib.), in which statistics were used to show that a rule requiring pilots be at least 5'6" tall disproportionately affected women. 177 Statistics may also be used to establish systemic discrimination. In Action Travail, statistics establishing a disparity between the representation of women in the Canadian workforce and the representation of women in the employer's workforce played a key role in establishing systemic discrimination. There was also considerable evidence of prejudicial attitudes within the workplace and their effect on women. In systemic cases, statistics are used to show that an organization's system of rules and practices has a disproportionate affect on a protected group. They may, for example, show that a disproportionately low number of members of the protected group have been hired or promoted by an organization, or that they have been disproportionately excluded from the organization's services. The disproportionately low representation may be caused by rules or practice that discriminate directly or by adverse effect, or a combination of both. The statistics may not identify the barrier (or barriers) that is causing the under-representation, merely that there is a systemic problem that has resulted in the disproportionate exclusion of the protected group. In a disparate impact analysis, statistics are used to show that a particular rule or practice disproportionately disqualifies members of the protected group.1 3 1 Whether they are used to establish the disproportionate effect of a rule or to suggest systemic discrimination, statistics require interpretation. In the words of Beatrice Vizkelety: ... statistical proof is not without its share of drawbacks. There is the risk of misuse and even the abuse of this type of evidence. A n oft-quoted criticism is that "too many use statistics as a drunk man uses a lamppost — for support, and not illumination". The use of statistical evidence is not an end in itself nor Supra note 7. 1 3 1 For an extensive discussion of the use of statistical proof in discrimination cases, see Baldus & Cole, supra note 4. 178 is it a substitute for legal reasoning. In the barrage of statistics and conflicting expert evidence one ought not to lose sight of the substantive law when determining the usefulness, the relevance, and the weight of statistical evidence ... Not surprisingly, this evidence will most often call for the assistance of expert testimony.132 To be effective, therefore, anti-discrimination legislation must enable investigation of the effect of facially neutral practices, which must include gathering statistics. In most jurisdictions, that can be accomplished, in theory, by providing investigators with sufficient powers to obtain that information. In practice, although most human rights statutes provide those powers, pressures caused by chronic delays and backlogs may result in superficial investigations that do not probe deeply into these types of complaints. However, that is a problem of resource allocation rather than administrative authority. If legislation, such as the current BC Code, does not include an administrative power of investigation, complainants will have to conduct their own investigation. Even with legal representation, that will be challenging. If the issue is a neutral rule or practice that has disproportionate effect, statistics may be generally available. For example, a complaint that an employer's requirement that applicant's possess a university degree adversely affects people with learning disabilities may be supported by stock data available through public sources on the educational achievements of people with learning disabilities. However, where systemic discrimination is alleged, the complainant may require evidence of the employer's workforce composition. The data may not exist or, i f it does, the employer may not voluntarily disclose it. A requirement to disclose documents will assist i f the document exists; a requirement that a document be created requires some other procedure and resources. The complainant may also require information about the internal practices and attitudes affecting employment 1 3 2 Vizkelety, supra note 12 at p. 175. 179 decisions. Obtaining that evidence will be difficult, particularly i f the complainant is outside the organization. Inequalities arising from structural barriers may, in general, be easier to identify and prove than neutral practices that are embedded in the organization's operations. Often it will be apparent that structural barriers are preventing access. For example, statistical evidence wil l not be needed to establish that, i f the only access to an organization is up a flight of stairs, people who cannot climb stairs will be adversely affected with respect to any opportunities for which access to the organization is required. Organizational barriers may be more difficult to identify. For example, an employer's expectation that its employees work full-time may reflect broader societal norms.1 3 3 To demonstrate discrimination on the basis of disability, evidence would need to be led proving that a full-time work requirement adversely affected a person or persons because of their disability. If the complainant establishes a prima facie case, the burden shifts to the respondent to justify the practice. Prior to Meiorin, respondents were required to demonstrate that the discriminatory rule was rationally connected to the work involved and, i f so, that the complainant could not be accommodated without undue hardship to the employer. Following Meiorin the same three-part test is applied to all justification defences, whether they relate to exclusionary classifications that discriminate directly or to neutral practices having an adverse effect. The powers needed for determining the merits of justification 1 3 3 Another such norm is the "hale and hearty worker", who is energetic, has high concentration abilities, is alert to adapt to changing conditions, and can withstand a variety of stresses in good humour: Iris Marion Young, "Disability and the Definition of Work", in Leslie Pickering Francis & Anita Silvers, eds., Americans with Disabilities: Exploring Implications of the Law for Individuals and Institutions (New York: Routledge, 2000) 169. 180 defence of discriminatory neutral practices are the same as those required for exclusionary classifications. Righting the Wrong If a justification defence fails, what is the appropriate remedy? Prior to Meiorin, the rational connection test was an easy burden to meet; therefore, most cases turned on the duty to accommodate. If the employer could not demonstrate undue hardship, the rule or practice was allowed to stand but accommodation of the complainant was required. This result led to a concern, discussed in the previous chapter, that the duty to accommodate was not an effective tool for achieving equality. Accommodating the individual provides an opportunity for that individual; however, it leaves in place practices that may be based on able-bodied norms. 1 3 4 The Court attempted to address that concern in Meiorin. Under the new test, neutral practices that have an adverse effect will undergo the same scrutiny as those that discriminate directly. In either case, the practice or rule may be struck down or modified i f it is not shown to be objectively necessary. Accommodation is still considered, but as part of the determination of necessity. This test offers the possibility that, where it can be shown that people with disabilities are victims of neutral practices, the rule wil l be changed rather than merely requiring accommodation of the disabled person to a norm that reflects historical discrimination or prejudice. 1 3 4 Shelagh Day and Gwen Brodsky, "The Duty to Accommodate: Who will Benefit" (1996) 75 Can. Bar Rev. 433 at 462. 181 To be effective at eliminating neutral practices, anti-discrimination must be able to strike down or vary the rule or practice. For example, in HutchinsonU5 the B.C. Human Rights Tribunal found that a government policy that prohibited disabled people who qualified for long term care from hiring family members as care-givers was discriminatory. The Tribunal ordered "that the Ministry allow for exceptions to its policy" and that it "develop a set of criteria, within nine months of the date of this decision, to allow for the hire of family members, on a case-by-case basis". 1 3 6 The "exceptions" portion of the order is akin to a requirement to provide reasonable accommodation; the "new criteria" portion goes further by requiring the government to rewrite its rules. Discriminatory practices may result from neutral provisions in legislation. Under Canadian law, human rights statutes have primacy over other non-constitutional legislation. If a human rights tribunal is unable, through application of principles of statutory interpretation, to interpret the discriminatory provision so as to remove the conflict with the anti-discrimination statute, the anti-discrimination statute will prevail. Where a specific rule is identified that is having an adverse effect, changing the rule to eliminate its discriminatory effect will eliminate the barrier. However, where the discrimination is systemic, there may be a number of practices which combine to discriminate against a particular group. Rather than attempting to address each practice in isolation, a systemic remedy (i.e., one that is targeted at broad systemic inequality, rather 135 Supra note 56. 136 Ibid, at para 276. 137 Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145 at 157-158. 1 3 8 The primacy of human rights statutes may be codified in the legislation: see, for example, BC Code, supra note 20, s. 4. 182 than at specific practices) may be the most effective response. For example, in Action 1 Travail there were a number of practices, not all of which were neutral, that prevented women from achieving equality within the employer's workforce. The Tribunal ordered, among other things, that the employer implement an employment equity program. On appeal, the employer challenged the Tribunal's authority to issue such an order. The Court held that the Tribunal had authority under the legislation to order a "special program" to remedy the effects of systemic discrimination, and that its order was such a program.1 4 0 It is not clear that, in the absence of express statutory authority, a tribunal could order an affirmative action program. Although such remedies are incorporated in some Canadian 141 i • ' i 142 statutes, the practice is not universal. A systemic remedy, such as an employment equity policy, holds the potential to transform discriminatory norms within an organization, partly by forcing the organization to scrutinize its policies and practices, but also by changing the composition of the organization to include people whose norms are more likely to vary from the mainstream. The remedy, however, is limited to that organization. As discussed previously, a tribunal cannot order an organization to implement systemic remedies unless the organization is before the tribunal. As a result, under a complaint-driven model, elimination of neutral practices will only occur one organization at a time. Action Travail, supra note 7. 140 Ibid. 1 4 1 See, for example, CHRA, supra note 48, s. 53(2)(a); BC Code, supra note 20, s. 37(2)(c); Manitoba Human Rights Code, C.C.S.M. c. H175, s. 42(2)(e). 1 4 2 For example the Ontario Code, supra note 42, and the New Brunswick Human Rights Code, R.S.N.B., c. H-11 do not expressly provide for systemic remedies. 183 In theory, a systemic remedy is an appropriate response to systemic discrimination against people with disabilities.1 4 3 However, to be effective, such a remedy would have to be carefully designed. That is, it must be designed to ensure that it provides a remedy to those people with disabilities who are being excluded. It would have to clearly describe the disabilities being targeted; otherwise, given the scope of "disability", the organization could comply with the order by including employees with relatively minor disabilities among those counted as disabled. For example, broadly defined, disability could include managers suffering from hypertension or secretaries with carpal tunnel syndrome. While such impairments may be the basis for discrimination complaints, in most cases they should not be included as disabilities for the purpose of systemic remedies. The challenge of designing appropriate systemic remedies for people with disabilities is compounded by the lack of useful statistics; the problem of remedying disability-based systemic discrimination mirrors the problem of establishing it. Clearly, in addition to compensating the victim, an effective remedy requires removal of the barrier. As with neutral practices, that can involve either removing the barrier or accommodating the individual. The Huck case illustrates the authority of tribunals to make orders requiring barrier removal under anti-discrimination legislation.1 4 4 However, it also illustrates the limitations of the remedial authority of such tribunals. The aim of the order in Huck was not merely to accommodate him and other patrons using wheelchairs by allowing 1 4 3 In practice, such remedies are rare on any ground. I am unaware of any cases in which such a remedy has been ordered to address disability-based discrimination. I am aware that parties have negotiated systemic remedies as part of a mediated resolution. Unfortunately, the results of those discussions are confidential and, therefore, are not helpful examples. 1 4 4 Similarly in Quesnel v. London Educational Health Centre (1995), 28 C.H.R.R. D/474 (Ont. Bd.Inq.) the Board of Inquiry ordered the respondent to build a ramp, at a cost of $20,000, to provide wheelchair access to his chiropractic office. 184 them a space to view the movie. Indeed, the Court did not rely on the duty to accommodate in its decision. Instead, the Court aimed at providing wheelchair-users with the same viewing experience as other patrons, which includes some choice in seating location, and therefore ordered that seats be removed at more than one location in the theatre. But the decision in Huck did not reach beyond that particular theatre. I am unaware of any surveys related to wheelchair-accessible seating in theatres. As a wheelchair user, however, in my experience most theatres limit such seating to a few spaces in the back row. Although this accommodates people with disabilities by enabling them to view the movie, it does not meet the goal of equal viewing experience. Moreover, despite Huck, issues of access to movie theatres continue to be litigated.1 4 5 The Huck case illustrates the limitations of tribunal orders, as discussed in previous sections. That is, the order does not extend beyond the circumstances of the particular case. Most importantly, the order in Huck does not get at the root issue: the design norms that create theatres and other buildings that, by application of a vision of society that does not include people in wheelchairs, excludes that segment of the population. To achieve equality for disabled people that vision must be changed, or alternatively, designers must be forced to comply with an inclusive vision. 1 4 5 See Miele v. Famous Players Inc. (No. 2) (2000), 37 C.H.R.R. D/l, 2000 BCHRT 5; Turnbull v. Famous Players Inc. (2001), 40 C.H.R.R. D/333 (Ont. Bd. of Inquiry). Following the Turnbull decision, which found in the complainants' favour, the theatre responded by closing the theatre and blaming disabled people for the closure: see M. David Lepofsky, "The Long, Arduous Road to a Barrier-Free Ontario for People with Disabilities: The History of the Ontarians with Disabilities Act ~ The First Chapter" (2004) 15 NatT J. Const. L. 125. at 152. 185 So far, I have been discussing physical and organizational structural barriers that cause inequalities for people with disabilities. There are other structural barriers that run deeper and reflect the historical exclusion of disabled people. As a consequence, even i f one imagines a world in which physical and organizational barriers were suddenly removed, people with disabilities would not be in a position to compete equally. They are poorer and less educated than their able-bodied peers. In the barrier-free world I have imagined, education will also be barrier-free. However, even in that world, it would take years for people with disabilities to catch up to the rest of society, and it is likely that some people with mental disabilities will never catch up even with discrimination-free access. Moreover, we do not live in that world. We live in a world in which the employment prospects for people with disabilities are grim even with improving access to education.146 Under even the most optimistic view, disabled people will continue to face barriers to employment for years to come. They will continue to experience inequalities related to income. Further, there will likely always be people with disabilities that are so severe that they wil l never be able to participate fully in society.1 4 7 What can be done under anti-discrimination legislation to ameliorate these deep-rooted inequalities? Tribunals can and 148 * have issued orders requiring the removal of barriers to equal education. They can require that an individual educational institution make changes to enhance access. They may also be 1 4 6 For example, although access to a legal education has improved for people with disabilities, lawyers with disabilities face significant barriers to employment within the legal profession: Hill, supra note 33; McCarthy, supra note 33. 1 4 My failure to provide an example of such a disability is intentional. With technological developments and changing attitudes about disability, people that would a decade or two ago have been considered to have disabilities too severe to allow participation are now gainfully employed. 1 4 8 See, for example, Howard v. University of British Columbia (No. 2) (1993), 21 C.H.R.R. D/142 (B.C.C.H.R.). 186 able to require that governments distribute their funding in a non-discriminatory manner.149 Such changes are clearly beneficial. But can tribunals do anything to direct a proactive societal response to the educational deficit among people with disabilities? In my opinion, they cannot. At best, human rights agencies can put pressure on governments through public statements that address the issue. The broad-based re-distribution of educational opportunities that would be required to effect change must come through government policy. Similarly, chronic poverty is a barrier for many people with disabilities, particularly those whose income is from a government welfare program.1 5 0 Tribunals, may redistribute funds within those programs to remedy the effects of discrimination.151 However, it is doubtful that a tribunal could order that government re-distribute general revenue to increase welfare to 1 S9 poor disabled people to ameliorate the effects of poverty. (b) Summary Under Canadian law, neutral practices that have an adverse effect on the basis of disability constitute discrimination under anti-discrimination legislation. If they are identified and there is no bona justification for them, tribunals are able to provide remedies that will 1 4 9 See, for example, Hutchinson, supra note 56. However, there is now some doubt about the extent to which tribunals can remedy discrimination through direct government expenditures. Recent decisions of the Supreme Court of Canada suggest an increasing reluctance to interfere in the discretionary funding decisions of government: see Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66; Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657. 1 5 0 In 2001, 29% of people with disabilities derived most of their income from government transfers: Government of Canada, "Advancing the Inclusion of People with Disabilities 2004", available online at Social Development Canada website, (accessed March 12, 2005). 1 5 1 See, for example, Hutchinson, supra note 56. 1 5 2 To date, the legal system has been ineffective in dealing with poverty issues. See, for example, Gosselin v Quebec (Attorney General), [2002] 4 S.C.R. 429; Federated Anti-Poverty Groups of B.C. v. Vancouver (City), 2002 BCSC 105; Vancouver (City) v. Maurice, 2003 BCSC 1271. 187 eliminate or ameliorate the particular inequality. Those remedies may go beyond providing equality for a particular individual by ensuring that the practices do not deny opportunities to other people with disabilities. But neutral practices can be difficult to identify, particularly in the absence of helpful data related to workers with disabilities. A complaint-driven model is an unreliable means to identify neutral practices that operate as barriers. Moreover, although anti-discrimination models provide administrative and quasi-judicial mechanisms for determining whether such practices are unjustified discrimination, the case-by-case approach limits the effectiveness of any remediation and unequally distributes the cost of remedying such practices. Structural barriers are an important source of inequality for people with disabilities. In Canada, they are recognized as a form of discrimination under anti-discrimination legislation. Such barriers are often easily identified and their effect on people with disabilities is apparent and requires little proof. Courts and tribunals have established tests to determine whether such barriers are justified. Tribunals have the power to remove barriers or, i f that i f that is not possible, to require accommodation. Those powers include the ability to require some forms of re-distribution. However, as with other barriers, under a complaint-driven model the barriers must be removed on a case-by-case basis. Achieving equality under that model will be a very slow process. Moreover, anti-discrimination agencies are ill-equipped to address the societal norms and attitudes that underlie the barriers or to bring about the large-scale re-distribution of opportunities and income that are necessary to achieve equality for disabled people. 188 5. Conclusion Canadian anti-discrimination laws provide broad powers to investigate, determine, and remedy barriers to equality. Despite these powers, disabled people continue to be excluded from equal participation in society; they are disproportionately poor, unemployed and under-educated. Part of the explanation is that equality rights for disabled people are relatively new. It is reasonable to expect that the broad changes needed to achieve equality for people with disabilities will take time. This analysis reveals that the failure to effect that change more quickly is also attributable to the design of anti-discrimination enforcement mechanisms. When anti-discrimination legislation was introduced into Canada, the conception of equality was formal. The basic model of enforcement has changed little since then. It is therefore not surprising that the model appears to be best suited to address formal inequalities. Except for people whose impairments limit their ability to be informed of their rights or access the complaint system, the complaint-driven, reactive model provides sufficient powers to identify, determine and remedy cases of direct discrimination against individuals or groups. The farther the inequality moves from the formal model, the more limited is the ability to address it under anti-discrimination legislation. Neutral practices and structural barriers within an organization that have adverse effects on people with disabilities can be identified and addressed. However, tribunals are not able to reach beyond the particular organization to remove barriers that reflect broader societal norms, or to address the norms themselves. As a result, despite the efforts of advocates to bring disability within the protective umbrella of anti-discrimination legislation, and despite a history of successful, claims under that 189 legislation, people with disabilities continue to be marginalized. The barriers that were identified at the outset of this chapter remain widespread. Clearly, although anti-discrimination laws have been an effective tool to eliminate, or lower, many individual barriers, those laws, at least as they have been designed in Canada, appear to be limited in their capacity to effect the broad systemic transformations that are necessary to achieve substantive equality for people with disabilities. This chapter has demonstrated the influence of administrative powers and procedures on the effectiveness of anti-discrimination laws. It seems clear that the effectiveness of such laws can therefore be enhanced by strengthening those powers. However, even with enhanced powers, anti-discrimination laws, as they are currently conceived, will likely remain an incomplete solution to the inequalities experienced by people with disabilities. This chapter, has addressed anti-discrimination legislation generally. In the next chapter, I wil l examine more closely how administrative powers and procedures affect the effectiveness of anti-discrimination laws by looking at two recent models of anti-discrimination enforcement. In the concluding chapter I will consider some tools to achieve equality that do not rely on general anti-discrimination legislation. 190 Chapter V: The Structure of Equality [A] 11 governments support rights protection, both in theory and in practice. They extol the importance o f human rights society and the role governments play in establishing and maintaining human rights commissions and promoting their work. ... No government, no matter how conservative, has ever considered eliminating human rights policy outright.1 b 1. Introduction In the first two chapters, I reviewed the introduction and development of Canadian anti-discrimination legislation and the evolution of equality theory. The legislation evolved from the early quasi-criminal statutes, in which victims of discrimination carried the burden of eliminating barriers to equality, to comprehensive legislation, in which the state took an active role in the pursuit of equality through public education and by providing mechanisms to investigate and prosecute complaints of discrimination. Generally, that evolution was a process of incremental growth rather than radical revision. The scope of legislation was gradually enlarged and new mechanisms established to make it more effective. During the same period, equality theory evolved from the formal theory of equality that prevailed at the time anti-discrimination legislation was introduced, to substantive theories of equality that developed in the 1980s. In Chapter III, I discussed disability rights theory and concerns about the effectiveness of anti-discrimination legislation as a tool for achieving substantive equality for people with disabilities. In Chapter IV, I considered the powers and procedures that are necessary for anti-discrimination agencies to remove barriers to equality for disabled people. ' R. Brian Howe & David Johnson, Restraining Equality: Human Rights Commissions in Canada (Toronto: University of Toronto Press, 2000) at 158. 191 In this chapter, I draw some of these themes together by looking closely at the enforcement of equality through anti-discrimination legislation in one jurisdiction - British Columbia. In particular, I will examine how shifting visions of the role of the state in achieving equality are reflected in the structure and powers of the institutions charged with addressing discrimination, and I will consider the effectiveness of those institutional mechanisms as a tool for achieving substantive equality for people with disabilities. 1 chose to consider the legislation in British Columbia in part because it is the jurisdiction with which I am most familiar. But there are other reasons. British Columbia was one of the first Canadian jurisdictions to recognize disability as a prohibited ground of discrimination. Yet British Columbians with disabilities continue to be disproportionately poor, unemployed and undereducated. According to a recent report, the average income for B C males with disabilities is $28,074, compared to $36,053 for those without disabilities; the employment rate for British Columbians with disabilities is 44%, for those without disabilities it is 72%; and British Columbians with disabilities complete high school and go on to post-secondary education at lower rates than those without disabilities.3 Despite almost thirty years of legislation prohibiting discrimination on the basis of disability, disabled people continue to be victimized by discrimination. This report concluded: Persons with d isabilities m ake up 13.8% o f the British C olumbia p opulation. Many have the capacity and desire to actively participate in the labour force, but 2 "Disability" was, in effect, read into the legislation in 1976: Jefferson v. British Columbia Ferries Service (unreported, 29 September 1976, B.C. Bd Inq.). 3 Malatest & Associates Inc., "A Profile of Persons with Disabilities in British Columbia: Employment, Labour Market Needs and Occupational Projections" (The Minister's Council on Employment for Persons with Disabilities, 2003), online at: (accessed May 26, 2005). 192 are restricted by barriers to their employment or re-employment that prevent them from participating to their full ability. With future employment projections for British Columbia pointing to greater labour demand amid shrinking labour supply, there are potentially many employment opportunities for persons with disabilities and other non-traditional labour market groups. However, systemic issues and historical biases in labour practices must be examined and corrected in order for these labour groups to have access to these employment opportunities.4 Legislative developments in British Columbia are also instructive because, for at least two decades, anti-discrimination legislation has been an important expression of changing political visions and consequently has been the subject of often heated debate. With successive changes of government have come dramatic and sometimes radical amendments to anti-discrimination legislation. Governments have been reluctant to alter substantive protections. They are aware that such changes, whether they derogate from established rights5 or introduce new rights,6 provoke controversy. Instead, they have generally expressed their vision of equality through changes to the institutional model used to enforce the legislation.7 So, while the concept of equality has evolved along a similar path in British Columbia as in other provinces, the development of policies and procedures to enforce that o equality has been aptly described as "turbulent". The dramatic changes to the administrative structures, responsibilities and powers contained within the legislation reflect radically different visions of the role of the state in achieving equality. 4 Ibid, at 7. 5 Such as when the Socred government dismantled the B.C. Human Rights Commission and Branch in 1983: see infra note 18 and accompanying text. 6 Such as amendments by the NDP government in 1992 to include several new grounds of discrimination including sexual orientation: Human Rights Amendment Act, 1992, S.B.C. 1992, c. 43. 7 This is not to suggest that by focusing on institutional change governments are shielded from controversy. On the contrary, debate inside and outside the legislature is often fierce. However, governments are able to frame the debate around institutional effectiveness rather than principles of equality. 8 Howe & Johnson, supra note 1 at 65. 193 As clear expressions of legislative intent through procedural rather than substantive change, the legislative changes in British Columbia illustrate how modifications to the administrative powers in an enforcement model can affect the utility of that model as a tool for achieving equality. Further, the legislation follows intense review and consultation. The two most recent enforcement models represent the cutting-edge of Canadian anti-discrimination legislation, albeit from different political perspectives. They are therefore instructive as case studies in analyzing whether any anti-discrimination statute can effectively achieve equality for people with disabilities. I begin with a review of the history of anti-discrimination legislation in British Columbia. M y focus is on the tendency to express legislative intent through procedural or structural change rather than by revision of the substantive provisions of the legislation.9 By "substantive provisions" I mean those provisions that grant or restrict rights, or that define or interpret them. I will then consider the two most recent enforcement models in British Columbia - the model created in the 1996 Human Rights Code, which with its bifurcated commission/tribunal structure was similar to models in other jurisdictions, and the model created by the 2002 amendments to that Code, which eliminated the commission and provided complainants direct access to the tribunal. In particular, I will consider whether, given their administrative responsibilities and powers, either model is likely to be able to address effectively the barriers to equality faced by people with disabilities. 9 The development of substantive provisions is discussed above in Chapter I. 194 2. A B r ie f His tory of the Legislat ion As in other Canadian jurisdictions, anti-discrimination legislation in British Columbia is a post-World War II phenomenon. Initially, British Columbia's legislators followed a path that was similar to other Canadian jurisdictions. Through the 1950s and 1960s B.C. governments introduced a series of fair practice statues.10 In 1969, these were consolidated and a human rights commission created to administer them.11 However, the Commission had almost no staff and heard few complaints.12 In 1973, the newly-elected and left-leaning New Democrat 13 Party (NDP) replaced the Human Rights Act with the Human Rights Code. The new legislation, which did not depart radically from the trend in other jurisdictions, reflected frustration at the ineffectiveness of the legislation then in place. Emery Barnes, an NDP M.L. A. and long-time human rights activist, described the need for the legislation: I think the Human Rights Act of the past was a mockery and a sham. It was mainly very well-written rhetoric that gave the impression of being a concerned document. But I'm here to tell you that after five years or more of working with community groups that were concerned about individual rights, I never saw a case prosecuted successfully under the old Act. I am no lawyer and I'm no expert in this field but just one who cared and who tried in vain over the years to get the chairman of that Act to implement some of the sections contained within it. 1 4 Introducing the legislation, the Hon. William King informed the Legislature that the legislation was a more positive approach to human rights enforcement. The agency responsible for enforcing the legislation, the Human Rights Branch, would no longer be 10 Equal Pay Act, S.B.C. 1953 (2nd Sess.), c. 6, Fair Employment Practices Act, S.B.C. 1956, c. 16, Public Accommodation Practices Act, S.B.C. 1961, c. 50. 11 Human Rights Act, S.B.C. 1969, c. 10. 1 2 William Black, BC Human Rights Review - Report on Human Rights in British Columbia (Vancouver: Ministry Responsible for Multiculturalism and Human Rights, 1994) at 3 [Black Report]. 1 3 S.B.C. 1973, c. 119 [Code]. 1 4 British Columbia, Official Report of Debates of the Legislative Assembly (Hansard), (5 November 1973) at 1264. 195 limited to a responsive role. In addition to providing education on equality, the Branch could come to grips with violations without waiting for a complaint.15 The thrust of the administrative changes was to advance equality by providing the human rights agencies (the Commission and the Branch) with powers that enabled them to be proactive in addressing discrimination through public education programs and the ability to initiate complaints. Despite some substantive changes,16 the legislation was supported by all parties.17 However, within a decade it had lost the support of the political right. Human rights became the focus of heated political debate, particularly following the re-election of the right-leaning Social Credit (Socred) party in the spring of 1983. Beginning in 1983, British Columbia began to chart a course that was independent from other Canadian jurisdictions. Human rights legislation became an important expression of the political ideology of the governing party. As successive governments swung from left to right and back again, the legislation was re-written to reflect the vision of equality of the party in power. It is not surprising, therefore, that in the turbulent politics of British Columbia, human rights legislation also has a turbulent history. I turn now to the first of the dramatic departures from the Canadian legislative mainstream. x5 Ibid, at 1257 (W.S.King) 1 6 The Code expanded the previous Act by adding the grounds of marital status, political belief, and conviction for a criminal or summary conviction offence in the area of employment, and added sex as a prohibited ground in the other areas of discrimination. Moreover, in the area of employment, the BFOR defence for sex discrimination was eliminated. Instead, the Code prohibited discrimination in employment unless there was "reasonable cause". The reasonable cause clause is discussed in Chapter I, supra note 75 and accompanying text. Generally discrimination on the prohibited grounds did not constitute reasonable cause except in the case of sex if it related to "maintenance of public decency" and in the case of conviction for an offence that related to the employment at issue. The reasonable cause clause was used as vehicle for expanding the grounds covered by the Code. For example, it was used to address discrimination based on disability, despite the absence of disability (or handicap) in the list of proscribed grounds of discrimination: Jefferson v. British Columbia Ferries Service (unreported, 29 September 1976, B.C. Bd Inq.). 17 Hansard, supra note 14 at 1257-1260. Indeed, the major criticism of the Bill on second reading was that it did not go far enough. Garde Gardom, then a Liberal M.L.A. but subsequently elected as a Socred, suggested that the legislation was "still pretty thin soup": Hansard at 1257. 196 (a) The Council of Human Rights As part of the Socred government's 1983 restraint budget, it introduced a package of legislation that included a bill aimed at repealing the Human Rights Code and replacing it 1 8 with a new statute. At the same time, the Government dismantled the human rights agencies that had been established under the Code, dismissing the staff and commission members. As a result of intense criticism by human rights activists, unions and others,19 the proposed legislation did not proceed to second reading. However, the staff and commission were not reinstated. Howe and Johnson observe that "B.C. became the first province to abolish its human rights system."20 In 1984, "amidst much controversy",21 the Government 99 introduced a new Human Rights Act. This legislation reflected a vision of equality that was a throwback to earlier enforcement models. That is, it retreated from the proactive aims that were reflected in the 1973 Code. The educational mandate was gone, as was the power of the human rights agency to initiate complaints. As Black notes: "[The legislation] continues the focus on individual complaints. Solutions to broader issues of equality are treated, at 9"i best, as a by product of resolving these individual complaints." 18 Human Rights Act, British Columbia, 1st Session, 33rd Parliament, Bill 27. 1 9 The restraint budget and the legislative package accompanied it led to the formation of the Operation Solidarity and Solidarity Coalition which were union- and community-based coalitions that opposed the budget and legislation. They exerted pressure through mass rallies and, in the fall of 1983, strikes. Bill 27, the proposed human rights legislation figured prominently in the protest. For a discussion of the legislative package and the response to it, see Bryan D. Palmer, Solidarity: The Rise and Fall of an Opposition in British Columbia (Vancouver: New Star Books, 1987). 2 0 Howe & Johnson, supra note 1 at 65. 21 Black Report, supra note 12 at 3. 2 2 S.B.C. 1984, c. 22 [Act]. 23 Black Report, supra note 12 at 3. , 197 When it introduced this legislation, the Government expressed a commitment to protect human rights. The Minister responsible, the Hon. Robert H. McClelland, gave a strong endorsement of the need for anti-discrimination legislation: Equal rights and equal opportunity are fundamental to the freedoms we enjoy in this province: freedom, without limitation of race, colour or creed, to take part in all of the advantages society has to offer; freedom to make our homes wherever we choose, so far as our means allows us, and to advance in employment as far as our initiative, training and skills wil l take us; freedom to live without harassment or discrimination based on hatred, prejudice, bigotry, ignorance or fear. These are the basic tenets upon which all human rights legislation should be based. This new bill is the government's reaffirmation of these principles, as well as its dedication to provide direct and effective remedy to people whose human rights have been denied.24 The Government expressed concerns about "serious defects" in the Code and its administration. In particular, it was concerned that under the Code the meaning of discrimination was uncertain, that the human rights process was trivialized "by allowing complaints which didn't deal with substantive discrimination problems", and that it was slow to resolve legitimate human rights problems.25 The Government did not directly attack the substantive protections in the Code. The substantive prohibitions on discrimination remained generally the same, with two notable exceptions: first, the Act expressly prohibited discrimination based on physical or mental disability in all areas covered by the statute; and second, the "reasonable cause" clause was removed and replaced with a BFOR defence on all grounds.26 Moreover, in response to British Columbia, Official Report of Debates of the Legislative Assembly (Hansard), (12 April 1984) at 4373. Ibid. Act, supra note 22, s. 8(4). 198 criticism that the new legislation could be interpreted as prohibiting only intentional discrimination, the Government introduced an amendment to clarify that intent was not 77 required. However, administratively, the Act introduced a structure that differed markedly from previous enforcement models. The Human Rights Commission and Branch were replaced with the Council of Human Rights. The Council consisted of up to five full-time appointees.28 Under the Act, they were responsible for receiving complaints from the victims of alleged discrimination or by someone on that person's behalf.29 Responsibility for investigation of the complaint rested with the Council. It had the power to dismiss complaints without an investigation in a number of circumstances: i f the complaint was not within its jurisdiction; i f it could be more appropriately dealt with under another Act; i f it was trivial, frivolous, vexatious, or made in bad faith; or i f it was not filed within the limitation period.3 0 The Council was given powers of investigation,31 but no investigative staff. In practice, investigations were conducted by Industrial Relations Officers, who were not employees of the Council. The Council retained staff to receive complaints and perform administrative functions. Upon completion of an investigation, the Council was required to decide what the next step would be. It could decide to discontinue the matter; it could recommend a settlement, and i f the recommendation was not accepted by one of the parties, submit a report to the Minister; or it could designate a member of the Council to conduct a 27 Hansard, supra note 23 at 4583. The new provision, which became s. 13(2) of the Act, stated: "The council shall not decline to proceed with an investigation by reason only that there was no intent by the person against whom the complaint was made to contravene this act" . 28 Ibid. s. 10. 29 Ibid. s. 11. 30 Ibid. s. 13 31 Ibid. s. 12. 199 hearing into the merits of the complaint. The discretion to report to the Minister was rarely - i f ever - used. The Council's practice was either to dismiss the complaint or designate a Council Member to conduct a hearing. The fact that the Council was required to investigate a complaint, determine whether it should be heard, and hear it created a possible appearance of conflict. Administratively, this problem was addressed by ensuring that there was always at least one Member available to hear the case who had no prior involvement in the matter. The designated Council Member had powers of subpoena and contempt.33 The remedial powers available to the Council Member were the same as under previous legislation except that the discretion in the Code to award up to $5000 for aggravated damages was replaced in the Act by a discretion to award up to $2000 in addition to any other order; this award no longer required a finding of aggravated damages.34 Although the new legislation did not expressly curtail the substantive rights protected in the 1973 Code, the changes to the structures and powers of the agency responsible for enforcing it reflected a different vision of equality. Under the new legislation, the role of the Council of Human Rights was a reactive one; it had very limited powers to deal with discrimination proactively, but had enhanced powers to screen out "trivial" complaints. In 1991, the NDP was returned to power. The following spring, the Government introduced amendments affecting primarily the scope of the legislation.35 The amendments added sexual orientation as a prohibited ground, expanded the definition of age (from 45-65 to 19-32 Ibid. s. 14. 3 3 These powers were not included in the Act when it was introduced, but were included in amendments the following year: Miscellaneous Statutes Amendment Act (No. 2), 1985, S.B.C. 1985, c. 51, s.32. 34 Act, supra note 22, s. 17(2)(b). 35 Human Rights Amendment Act, 1992, supra note 6. 200 65), and introduced new remedial options. In particular, the amendments provided that, following a hearing where the Council Member found that the complaint was justified, the Member had discretion to order that the person who contravened the Act: (i) take steps, specified in the order, to ameliorate the effects of the discriminatory practice; (ii) adopt and implement an employment equity program or other special program i f the evidence at the hearing has disclosed that the person engaged in a pattern or practice that contravenes this Act 3 6 In addition, the amendments added a section excluding employment equity programs from the definition of discrimination, and authorizing the Council to recommend objectives for or give advice or assistance with respect to the carrying out of employment equity programs or other programs or activities "that have as their objective the amelioration of conditions of disadvantaged individuals or groups."37 These amendments were substantive, not procedural. The government thus bucked the trend in British Columbia that avoided such changes. This may reflect the optimism of a party that was new to its mandate after an extended period in opposition. The thrust of the amendments addressing employment equity and other special programs was to move beyond formal conceptions of equality. The amendments recognized that, to "ameliorate the conditions of disadvantaged groups", some positive action was required. They also recognized that an individual, complaint-based anti-discrimination model is not the only mechanism for addressing inequality. Ibid. s. 11, amending s. 17 of the Act. Ibid. s. 12, adding s. 19.1 to the Act. 201 Despite these changes, the legislation and its enforcement continued to be criticized on a number of grounds: there was an inadequate focus on human rights education; the process took too long; investigations were slow and incomplete; a process relying exclusively on individual complaints was not a sufficient strategy to deal effectively with discrimination; the human rights process overlapped with other legal processes, particularly in the workplace; and the human rights agency needed to have stronger links to the community.38 0?) A New Code In 1993, the government retained Professor William Black to conduct a review of "all aspects of the Human Rights Act and the way that it fits in our legal system."39 In 1994, he released the Black Report.40 The report recommended wide-scale substantive and administrative changes to the legislation. In 1995, the government introduced a new Human Rights Code.41 The new statute incorporated most of the administrative and procedural changes recommended in the Black Report but not the recommendations for substantive change.4 2 Attorney General Ujjal Dosanjh (subsequently Premier Dosanjh) stated: [Prof. Black] made many recommendations. He made recommendations for substantive as well as structural and procedural changes. It was the decision of t his g overnment a 11 his t ime t o d eal w ith t he s tructural a nd p rocedural aspects of the human rights legislation only. The substantive aspects of the legislation, we felt, were adequate; we needed to make changes with respect to the structure and procedure embedded in the legislation 4 3 These concerns are discussed in the Black Report, supra note 12 at 26-28. 39 Ibid, at 1. 4 0 Ibid. 4 1 R.S.B.C. 1996, c. 210 [1996 Code]. Although introduced in 1995, the Code did not come into effect until 1997. 4 2 The recommendations for substantive change included, among others, that discrimination be defined to include unintentional discrimination, failure to fulfill the duty to accommodate, and harassment; that the Code incorporate the principle of equal pay for equal value; and that the prohibition on age discrimination be broadened to include all ages. 4 3 British Columbia, Official Report of Debates of the Legislative Assembly (Hansard), (22 June 1995) at 16061. 202 In case the point was missed, later in his speech he repeated that the Government was not touching the substantive provisions and, more specifically, that the Government was not introducing employment equity.44 Although the Government did not proceed with many of Black's recommended amendments to the substantive provisions, the new Code incorporated provisions that articulated a vision of equality that was more substantive and included a greater role for the state than in previous legislation. As discussed later in this chapter, that vision is reflected in both the express purposes and the administrative powers that are incorporated in the legislation. These powers were to be administered by a new structure. The Human Rights Council was eliminated and its responsibilities divided between the Human Rights Commission and the Human Rights Tribunal. The Commission consisted of a Chief Commissioner, a Deputy Chief Commissioner, and a Commissioner of Investigation and Mediation. The Commission was responsible for receiving, investigating and mediating complaints, and for educational and advocacy activities. At the conclusion of an investigation, i f the complaint had not been settled, withdrawn or dismissed, the complaint was referred to the Human Rights Tribunal, the adjudicative arm of the process. It was responsible for hearing the complaint, making any necessary determinations, and issuing orders to remedy any conduct that it determined to be contrary to the Code. In addition to the Commission and Tribunal, the Code created the Human Rights Advisory Council, which was to inform the public on the role of the Ibid, at 16063. 203 Commission and bring the concerns of the public to the attention of the Commission. I will refer to this structure as the "Commission Model". In 2001, there was another change in government, with a resulting swing back to the political right. The new Liberal government undertook a widespread review of the administrative justice system in the province (the "Administrative Justice Project"). One component of the Administrative Justice Project was a review of the administration of the Human Rights Code. Lawyers Deborah Lovett and Angela Westmacott conducted the review and released a background paper in December 2001. 4 6 The Background Paper reviews the genesis of anti-discrimination legislation in the province and discusses concerns about the administration of the Code that were expressed during stakeholder consultations. Finally, the Background Paper describes a number of different models that could be used to enforce anti-discrimination provisions. Lovett and Westmacott's mandate did not include making recommendations: the purpose of the paper was "to create a foundation for meaningful and informed consultation, debate and fundamental rethinking of the human rights process."47 The preface to the document indicates that comments about the Background Paper would be taken into account by the Administrative Justice Project when it drafted a white paper, and that there would be further opportunity for public input after release of the white paper and before the Government decided what steps to take. Despite that assurance, the Government introduced an exposure bill in the spring of 2002, before the white paper was released, that 4 5 1996 Code, supra note 41, s. 20. 4 6 Deborah K. Lovett & Angela R. Westmacott, Human Rights Review (Province of British Columbia, 2001) {Background Paper]. 47 Ibid, at ii. 204 radically altered the enforcement model. After a summer of consultation, the Government introduced a new bill, largely the same as the exposure bill, containing sweeping amendments to the Code.49 As with previous governments, the Liberals were careful not to amend the substantive provisions. Attorney General Geoff Plant, who introduced the legislation, stated: [T]he law alone will not make us free. There must also be a place and a way to enforce it. That is what this bill is about. The common-law lawyer has an old expression: where someone has a right, the law should give a remedy. The bill before us is concerned not with the substance of human rights, but its processes — that is, with the place and the way in which victims of discrimination can have a remedy.50 Later, he reiterated as follows: "Under this new system, the substantive protections afforded by the Human Rights Code will not change. What will change is the method of protecting those rights."51 The amendments significantly altered the Code's express purposes and the administrative structure empowered to achieve those purposes. The Human Rights Commission and the Advisory Council were abolished and their responsibilities either eliminated or transferred to the Human Rights Tribunal or Attorney General. The new model, which came into effect in 2003, requires that complaints be filed directly with the Human Rights Tribunal. There is no longer any state-supported investigation of complaints; instead, parties must rely on their 48 Human Rights Code Amendment Act, 2002, British Columbia, 3rd Sess. 37th Parliament, Bill 53. 49 Human Rights Code Amendment Act, 2002, S.B.C. 2002, c. 62, amending R.S.B.C 1996, c. 210 [Amended Code] 5 0 British Columbia, Official Report of Debates of the Legislative Assembly (Hansard), (23 October 2002) at 3985. 51 Ibid, at 3988. 205 own investigations supported by the Tribunal's disclosure rules and procedures. This model has come to be described as the "Direct Access Model". 3. Analyzing the Models In the remainder of this chapter, I will compare the Commission and Direct Access Models. The Direct Access Model has not been with us long enough to allow for meaningful empirical analysis of its outcomes. Instead, I will examine the administrative tools that are available under each model and the impact those tools may have on removing barriers to equality, particularly for people with disabilities. In Chapter IV, I focused on four types of barriers: individual bias, exclusionary classifications, and neutral practices and structural barriers. I then considered the practices and procedures that are needed to remove the barriers. Within the discussion of each barrier, I considered all stages of the complaint process - identification of a barrier, proof of discrimination, and remediation. In this chapter I turn that analysis inside out. M y focus here is on the three stages of the complaint process, which I have labeled "identifying inequality", "proving discrimination", and "righting the wrong". Within that analysis I consider the process as a tool for removing barriers for people with disabilities. I will analyze the two models separately, beginning with an overview of the model and then turning to an analysis of the complaint stages. I begin with the Commission model. 206 (a) The Commission Model (i) Overview of the Model The 1996 Code, which established the Commission and Tribunal, included a broad statement of purposes reflecting the objectives of human rights legislation identified in the Black 5 2 Report. For Black, correcting persistent and systemic patterns of inequality is the most important objective of a strategy for achieving equality. Further, redress for individual victims of discrimination must continue to be an objective of that strategy; they deserve a quick and effective remedy. Related to those two objectives for human rights laws, is the need for a fair process that can deliver a remedy that is effective, and expeditious. Other objectives identified by Black include measures to prevent inequality and "to monitor patterns of equality, to identify all the factors contributing to the inequality and to recommend solutions".53 The 1996 Code created a structure that clearly defined and separated responsibilities. First, the adjudicative functions were separated from all other functions and given to the Human Rights Tribunal. It operated as an independent agency,54 hearing cases referred to it by the Section 3 of the 1996 Code, supra note 41, stated: 3 The purposes of this Code are as follows: (a) to foster a society in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia; (b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights; (c) to prevent discrimination prohibited by the Code; (d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by the Code; (e) to provide a means of redress for those persons who are discriminated against contrary to the Code; (f) to monitor progress in achieving equality in British Columbia; (g) to create mechanisms for providing the information, education and advice necessary to achieve all of these purposes. Black Report, supra note 12 at 11-14. 5 4 "Independence" is a relative term. The Tribunal reported to the Attorney General and received its funding from the Attorney General. Appointments to the Tribunal were (and are) made by the Attorney General. The Tribunal was therefore less independent than the Ombudsman or the Privacy Commissioner, who report directly to the Legislature. (In a Legislature that is dominated by one party, that distinction may be more theoretical than real.) However, the Tribunal was (and is) not part of any Ministry and was, in that sense, independent of 207 Human Rights Commission. Second, within the Commission, the neutral administrative functions of investigation and mediation were given to the Commissioner of Investigation and Mediation (CIM). The CIM was also responsible for determining whether a case should be referred to a hearing or dismissed. That left the other two commissioners, the Chief Commissioner (CC) and the Deputy Chief Commissioner (DCC), free to pursue the other objectives of the Code without impairing, or (in theory) being reasonably perceived as impairing, the neutrality of the investigation process. The Code expressly prohibited the CC and DCC from interfering in the work of the C I M . 5 5 The CC was responsible for public education, and shared responsibility with the DCC for research, and for conducting public hearings and consultation on matters relevant to the Code. The DCC had an express advocacy function, having the power to file complaints, to require that the CEVI add the D C C as a party to a complaint, and to require that the Tribunal add the DCC as a party to a hearing. Did these changes create the powers necessary to achieve equality? That depends, of course, on how equality is defined. I will continue to apply the substantive conception of equality that has been adopted by Canadian courts and tribunals. As discussed in Chapter II, substantive equality considers the effects of laws, practices and procedures in light of their social and economic context. It goes beyond mere formal equality, which requires only that likes be treated alike. Substantive equality seeks to remove systemic factors that created inequality, even if those systems treat all people alike. The courts and tribunals in British Columbia apply the same interpretations and legal tests as I discussed in the Chapter IV. government. It was also completely independent of the Human Rights Commission, except that the Commission determined which cases came before the Tribunal. 5 5 1996 Code, supra note 41 s. 15(8). 208 In the previous chapter, I considered the powers needed to achieve equality for people with disabilities. I did so by considering categories of barriers: individual prejudice, exclusionary classifications, neutral practices, and structural barriers. A l l these categories of barriers are recognized as prohibited forms of discrimination and therefore, barring future statutory exemptions or new judicial interpretations, freedom from such barriers is an enforceable right under B.C. anti-discrimination laws. I will now consider the ability of the Commission to address those barriers at each stage of the complaint process. (ii) Identifying Inequality To enforce a right to equality, there must be a mechanism to identify inequalities. The Commission Model, as reflected in the 1996 Code, is complaint-based. As discussed in the previous chapter, such a model creates some problems for the identification of inequality. Generally, it disadvantages people who do not know of or understand their rights, have difficulty accessing the system to exercise them, or are in positions of powerlessness. Further, the victims do not always have enough information»to know whether discrimination was an issue in a particular decision. These are significant problems for people with disabilities, particularly those whose disabilities are severe. The 1996 Code contained several provisions that could ameliorate these disadvantages: First, the express educational mandate gave the CC the authority and purpose required to inform people with disabilities about their rights. Second, through its intake staff, the Commission could assist individuals who had difficulty filing complaints due to verbal, cognitive, or other 209 impairments. Third, those in positions of relative powerlessness could find some protection in a provision of the Code prohibiting retaliation against a person because they had filed a complaint;56 i f that was not sufficient protection, another person could file a complaint on behalf of the victim, 5 7 or the DCC could file a complaint.58 Fourth, the power to conduct research and to conduct public hearings and consultations provided an opportunity to identify discrimination without the need for a particular victim to come forward.59 Fifth, the Advisory Council could bring matters to the attention of the Commission.6 0 These powers could have been used to identify any of the types of barriers faced by people with disabilities. For example, the DCC could have engaged in a testing program to identify covert discrimination against people with disabilities within the context of large employers, and i f prima facie discrimination was uncovered, filed a complaint based on the findings. Surveys of the built environment could have been conducted to identify structural barriers. Or public hearings could have been conducted to inquire into the difficulties faced by disabled people in accessing the job market. In practice, the Commission used only some of its powers to ease the burden of filing complaints on those people who are most disadvantaged or to identify barriers to equality for disabled people. The Commission pursued its educational mandate vigorously. It published numerous pamphlets in several languages describing rights and responsibilities. The 5 6 1996 Code, supra note 41, s. 43. 51 Ibid. s. 21(4). 58 Ibid. s. 21(2). 59 Ibid. s. 6. 6 0 According to s. 20(3) of the 1996 Code, supra note 41, the Advisory Council was responsible for informing the public about the work of the Commission and bringing the concerns of the public to the attention of the Commission. 210 Commission also provided some support to potential complainants who were considering filing a complaint. The standard intake procedure was that telephone calls or letters were initially screened to determine jurisdiction.61 If the complaint appeared to be within jurisdiction, a package of material was sent to the inquirer. The package included a complaint form, which the inquirer was required to complete and return. Commission staff understood that they had an obligation to provide reasonable accommodation to people with disabilities and could vary these procedures i f appropriate; when in doubt, front line staff consulted with more senior personnel.62 The Commission was less enthusiastic in its use of its proactive powers to identify and redress inequalities. The DCC never filed a complaint, nor did the CC or DCC conduct any public hearings.63 Nevertheless, the Commission did take some proactive measures. In 1999, the DCC undertook community consultations with members of the disability community. Those consultations were aimed at developing strategies to address discrimination against the disabled.64 The consultations led, in turn, to further research by the Commission's public interest program into issues faced by people with disabilities. According to the DCC, the reports that resulted from the research led to some changes in 6 1 Among some human rights activists there was concern that the threshold applied by intake staff served to screen out deserving complaints. This was particularly troublesome because, although the CIM could dismiss complaints without investigation for a number of reasons, intake staff had no statutory mandate to screen out complaints. On the other hand, the Commission received many inquiries that were clearly outside the Commission's jurisdiction. Without this informal screening, the CIM and his/her delegates would have been overwhelmed. 6 2 Thomas Beasley, former legal counsel to the CIM, personal communication, January 7, 2005. 6 3 The Commission planned to conduct public hearings into aboriginal issues. Those hearings were cancelled after the change in government in 2001, which led to drastic cuts to the Commission's budget and the dismissal of the Chief Commissioner. 6 4 British Columbia Human Rights Commission, Annual Report, 1999/2000, p. 4. 211 governrnent policy. The Commission also conducted forums to hear representations on the effectiveness of the provincial government's employment equity program. Among other things, the report noted that between 1994 and 2000 the representation of people with disabilities in the provincial public service had decreased from 6.7 to 5.7 percent.66 The DCC did not, however, file complaints based on these reports. (iii) Proving Discrimination The 1996 Code provided broad powers of investigation to the CTM and to officers with authority delegated from the CEVI. These powers included the authority to require production of documents and records, to make inquiries orally or in writing of any person, and to enter premises to obtain information. The Code also provided the power to obtain a warrant i f a party was uncooperative.67 In theory, these provisions provided the CIM's officers with sufficient power to obtain any relevant information that was available. They go beyond the powers provided in civil discovery procedures by permitting officers to enter premises, search for documents and make inquiries of anyone. An officer could attend at an employer's premises and demand to see files for all past job competitions, review all employee discipline files, interview all employees, or demand information about the demographic profile of the workplace. The officer could demand the names of former employees and could interview them. In practice, however, investigations were generally more modest in scope. Typically, an officer would notify the respondent of the complaint and ask for a written response and relevant documents. The investigation might consist of British Columbia Human Rights Commission, Annual Report, 2000/200J, p. 14. Ibid, at p. 8. See 1996 Code, supra note 41, s. 24. 212 little more than asking for the complainant's reaction to the respondent's response, or it might involve interviews with witnesses or a search for additional documents.68 There are a number of factors that may contribute to the Commission's reluctance to routinely use the full range of its investigative powers. One is purely practical: the Commission received far more complaints than could be effectively investigated i f all were investigated as thoroughly as was possible.69 Moreover, Canadian human rights agencies -including those in British Columbia - have been rightly criticized for the delay that has come 70 to be associated with the anti-discrimination enforcement process. It is therefore not surprising that those agencies have sought to reduce the time taken to investigate complaints by developing expedited processes. The Commission developed procedures designed to balance the sometimes conflicting goals of resolving disputes in a timely and expeditious manner while seeking to eradicate deep-rooted and systemic discrimination. It attempted to meet the first goal by developing mechanisms aimed at a quick resolution. These included fact-finding conferences and early mediation. Fact-finding conferences were designed to bring the parties together early in the process. They brought relevant documents with them and had an opportunity to provide information supporting their position to the investigator. The conference could lead to the complaint being dismissed or referred to the Tribunal for a hearing without further Beasley, supra note 52. 6 9 The compliance section had approximately 30 staff to perform all of its functions. It received approximately 20,000 telephone inquiries annually, which lead to approximately 1500 complaints: Background Paper, supra note 46 at 60. 7 0 See Black Report, supra note 12 at 30; Background Paper, ibid, at 115; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at para. 135. 213 investigation. The fact-finding conference could also lead to mediation. Alternatively, the parties could go directly into a mediation process before investigation. In conjunction with these processes, which were aimed at speedy dispute resolution, CIM and DCC staff were trained to identify issues of systemic discrimination.71 Complaints raising systemic issues were brought to the DCC's attention. The DCC then decided whether to ask to be added as a party to the complaint.72 More resources were devoted to the investigation of systemic complaints. Another factor that may have contributed to the reluctance to do thorough investigations is the perceived unfairness when the more intrusive investigative powers are used against respondents. Investigations should be neutral in purpose and design: they seek out relevant information that will either prove or disprove the parties' positions, whether complaint or defence. However, although the powers can be used to obtain information from complainants, complainants rarely have much information beyond that which they have given in their complaints. Since almost all of the information comes from the respondent's side, investigators may be seen as favouring the complainant.73 To compensate for that perception, investigators may request information in the least intrusive manner. Lovett and Westmacott found that the investigation process was criticized by complainants' advocates and employers' representatives. Both sides questioned the usefulness of 71 Background Paper, supra note 46 at 63. 7 2 As of March 2001, the DCC had asked to participate in more than 75 hearings: Ibid, at 62, n. 68. 7 3 Lovett & Westmacott observe that many respondents perceive the complaint processing system as favouring complainants and that "CIM staff use a double standard for document disclosure during the investigation process": Ibid, at 67. 214 investigations. In provinces in which the human rights commission has carriage of a complaint i f it proceeds to hearing, the investigation serves two functions: it is the basis for determining whether the matter should proceed to the hearing stage, and the information it produces provides the evidentiary base used by tribunal counsel to prepare for hearing. In British Columbia, where the Commission did not have carriage of the complaint, the investigation served primarily the first purpose. Although the parties or their lawyers received copies of the investigation report and could obtain the investigator's file through a request under the Freedom of Information and Protection of Privacy Act,15 they did not have direct access to the investigator or to any information he or she obtained that was not documented on the file or was exempt under the privacy statute. As a result, much of the investigator's work was only used to determine whether the complaint should be dismissed without a hearing. To be an effective mechanism for equality, the process must be credible. To be credible it must be perceived as fair. To be perceived as fair, the agency must be regarded as neutral. The 1996 Code attempted to insulate the CIM from charges of unfairness by isolating that office from interference by other commissioners. That way, the C I M could determine whether a matter should be dismissed or proceed to a hearing based solely on the information obtained through a neutral investigation process.76 74 Ibid, at 68. 7 5R.S.B.C. 1996, c. 165. 7 6 Despite this legislative attempt to insulate the CIM from an appearance of bias, Lovett & Westmacott found that there was a perception that the CC, DCC, and CIM did not "operate at arm's length from one another": Background Paper, supra note 46 at 71. 215 For those cases referred to a hearing, the Code attempted to enhance credibility by creating an agency composed of expert adjudicators who were independent of the Commission or the parties to complaints. This was accomplished by creating a Tribunal of primarily full-time members with long-term appointments. The Black Report recognized that one of the features of the Council of Human Rights that was worth retaining was that it consisted of full-time adjudicators who developed expertise in discrimination law. 7 7 Under the Board of Inquiry model that had been in place in British Columbia prior to 1984, and that was in place in most Canadian jurisdictions, hearings were conducted by ad hoc appointments of individuals whose level of expertise varied. The Black Report recommended appointment of full-time 78 * 79 adjudicators and identified the need for fixed-term appointments to ensure independence. RO Under the 1996 Code, members were appointed for five-year terms with eligibility for one O 1 five-year reappointment. The Code provided the Tribunal with broad powers to ensure that complaints could be given a full and fair hearing. It gave Tribunal Members the power to issue and enforce subpoenas R 9 requiring persons to attend a hearing to testify under oath or to produce documents. In addition, the Code provided that the Tribunal could "make rules respecting the practice and procedure for the conduct of pre-hearing matters and hearings the tribunal considers • R^ necessary to facilitate just and timely resolution of complaints." Black Report, supra note 12 at 31. 8 Ibid, at 65. 9 Ibid, at 67. 0 1996 Code, supra note 41, s. 31(3). 1 Ibid. s. 31(5). 2 Ibid. s. 34(3). 3 Ibid. s. 35. 216 Tribunal hearings are adversarial and quasi-judicial. As a result, the parties and the process often benefit i f the parties are represented by legal counsel. It is typical in Canadian jurisdictions for the human rights commission to assume carriage of a case on behalf of the complainant i f it decides a hearing is warranted. The respondent generally must retain its own counsel or proceed without representation by legal counsel. Since 1984, British Columbia has followed a different path. When the Council of Human Rights was created, it was recognized that the Council could not both hear the case and advocate on behalf of a party - it could not be both judge and prosecutor. The solution was to provide the Council with funding, separate from its operational budget, to pay for legal representation for complainants. That representation was provided by private lawyers working under a legal aid tariff. The Black Report found that complainants liked the control this gave them over the presentation of their case; however, concerns were expressed about the quality of legal representation provided under the tariff system. Black recommended that legal representation continue to be funded by the legal aid system, but through a Human Rights Clinic. 8 5 The 1996 Code is silent on the subject of legal representation.86 Funding for independent legal representation under the legal aid tariff was, nevertheless, continued under the new legislation. In 1997, the Commission undertook extensive consultation on the issue of legal representation, culminating in a report that found widespread dissatisfaction with the model of legal representation then in place and recommended consideration of alternatives Black Report, supra note 12 at 131-132 85 Ibid, at 133. 8 6 The DCC could demand to be added as a party to the hearing; however, the DCC did not appear on behalf of either party, but on behalf of the public interest. 217 such as a clinical or mixed model.8 7 The recommendations were never implemented by the Commission. The combination of the Commission's broad investigative powers and the Tribunal's powers to compel production of evidence through disclosure rules and/or summons should have been sufficient to obtain any evidence that was available to prove the existence of discriminatory barriers to equality for people with disabilities. The criticisms of the investigation process were not that the Commission investigators had inadequate powers to obtain the necessary evidence to prove discrimination, but that they lacked the institutional will to consistently do so. (iv) Righting the Wrong The 1996 Code retained the remedial provisions that were added to the Act in 1992. Those provisions provided the Tribunal with broad powers to stop discriminatory practices and ameliorate their effects. If it found a complaint justified, the Tribunal was required to order that the discriminatory conduct cease and that the discriminator refrain from engaging in the same or similar conduct.88 It also had the discretion to order that the victim of discrimination be given the opportunity or privilege that they were denied, receive the lost wages or expenses caused by the discrimination, or be compensated for injury to their dignity, feelings and self-respect.89 The Tribunal could also order that steps be taken to "ameliorate the 8 7 Bill Black & Kathryn E. Thomson, Report on Legal Representation Models Under the B. C. Human Rights Code, unpublished report submitted to the B.C. Human Rights Commission, March 12, 1998, at 9. 8 8 1996 Code, supra note 41, s. 36(2)(a). 89 Ibid. s. 37(2)(d). 218 effects of the discriminatory practice",90 or that an employment equity or other special program be implemented "to ameliorate the conditions of disadvantaged individuals or groups" if there was evidence of a discriminatory pattern or practice.91 These remedial powers provided the Tribunal with the authority to address many of the barriers to equality faced by people with disabilities. If people with disabilities faced barriers caused by individual bias, they could be offered the opportunity and/or compensated for the discrimination. Respondents could be ordered to cease applying classifications that unlawfully excluded people with disabilities, or they could be required to take steps to ameliorate the effects to the classification. Exclusionary classifications could be struck down. Similarly, i f there was evidence of neutral practices having a discriminatory effect, including structural barriers, the Tribunal could order the removal or modification of those practices. Moreover, the Tribunal could order that positive measures be taken, such as employment equity programs, that would have a future benefit to individuals who were not before the Tribunal. Although the power to order implementation of employment equity or other special programs was not used by the Tribunal, the provision for such a power indicates a legislative intent to approach issues of inequality as something more than individual disputes. There was, nevertheless, a significant constraint on the Tribunal's ability to move away from a case-by-case, complaint-driven model. The Tribunal's remedial powers could only be implemented after it determined that "the complaint" was justified, and only against "the person who 90 Ibid. s. 37(2)(c)(i). 91 Ibid. s. 37(2)(c)(ii). 219 contravened" the Code. So, even i f a non-party was brought before the Tribunal and given an opportunity state its position, i f it was not the subject of a complaint or the Tribunal did not find that it had contravened the Code, it could not be ordered to make any changes to address an inequality. For example, i f the Tribunal found that a complaint was justified b