Dealing with Difference in Equality Law – EDF Seminar Series
Summary note of seminar on Monday 9th January 2006
Welcome by Patrick Grattan,Secretary, Equality and Diversity Forum
Welcome on behalf of the Equality and Diversity Forum.The Forum is committed to looking at the field of equality and diversity across the whole subject, rather than in separate segments, through our newsletter, website etc, and through this seminar series. We have had two of them so far and for those of you who were not able to attend them, I recommend having a look at the website ( will see information about the two seminars and copies of the presentations.The first was on the thorny subject of inequality, social inclusion and class, where we had two excellent presenters.The last seminar included fascinating presentations on different forms of prejudice from Miles Hewstone and Liz Kelly.The next seminar is on the 30th January and is about discrimination in the private sector withCaroline Waters from BT and Victoria Secretan from the Corporate Responsibility Group.
Introduction by Mohammed Aziz, Seminar Chair
I am Mohammed Aziz. I am the director of small organisation called Faithwise, and I would like to start by welcoming you all here.It is great to see such a big turn out considering the transport problems we are having this evening.Thank you all for making the effort to be here.We have two fantastic speakers with us this evening: Patricia Bregman and Robin Allen. Let me start with Patricia.She is a Canadian lawyer, specializing in disability law and policy. She spent seven years as a lawyer with a legal clinic specializing in test case litigation and policy development in the area of disability rights. She acted as co-counsel at the Supreme Court of Canada on one of the leading cases, and was directly involved in developing litigation strategy in most of the cases decided by the Supreme Court of Canada between 1992 and 2000. She has also acted as counsel for disability organizations in developing in new legislation and policy. Most recently she has been involved in the development of new disability discrimination legislation in Ontario. Patricia clerked for the Chief Justice of the Ontario Court of Appeal. She also launched a successful initiative designed to help employers deal with mental health issues in the workplace and is a frequent speaker on disability and employment issues.
Patricia Bregman
I want to thank you for inviting me here today.This is an amazing opportunity; the work done in the UK is quite impressive.I know that you are constantly hearing how wonderful Canada is and how good the law is, and I will talk about that.The reality is that we don't have anything that comes close to the equivalent of a forum for this kind of discussion, and we are paying a price for it in that we may have very good lawsbut to some extent the way in which they are applied and the impact of them is not nearly as effective as in the UK.We have learnt a lot as we have gone along from other jurisdictions and our new Disability Discrimination Act built on some of the work done here by the Disability Rights Commission.In addition to working on disability, I have done a lot of work on the areas of race and nationality.I was director of a Task Force for three years that looked at the question of discrimination against foreign trained professionals.These would be the people who came to Canada but were not able to use their credentials as a doctor, lawyer etc.
I will be submitting a paper for this seminar, however, Canadian courts and Government seem to have a problem with letting us enjoy our holidays, and a week ago the British Court of Appeal issued a decision that I will talk about which totally turned a lot of what I had written for this seminar on its head.So I need a little time to put that into context.One of the things I am working on is writing an intervention for the Supreme Court of Canada.
Thinking about the questions that we were asked, which is really about looking at Canada as a unified system of equality, I tried to step back. It is interesting to think about your own system from different perspectives.Canada has almost always had a unified approach towards equality, so coming into a jurisdiction in which you have number of different acts is hard for us to comprehend.We have had 20 years of experience of building that unified system of equality and if asked the question, does it work to have concepts like reasonable adjustment that apply to all discrimination, my short answer is yes.I have come to the conclusion it's hard to justify not taking that approach.There are structural issues but I think it’s important in talking about equality rights to not only talk about what we want the law to be but think about our own approach towards talking about equality.It struck me in reading papers that have been written in the last year about Canada's Charter that there are complaints from groups that it is not doing what it should.The main complaint is that the court is slipping a little bit between having substantive equality and formal equality or categorical equality (which is more like the system you have got).I think we need to listen to our own critics.
Starting from the point of where the Canadian law is, I think it is important to think about equality rights as a different kind of legislative obligation on government.There was a lot of criticism when the Charter was first introduced.Because it is revolutionary in the parliamentary system to have equality rights enshrined, and I think that is saying that our rights are no longer just another statute, what is different is that we now have constitutional equality rights and that overrides everything.Whilst the Charter itself only applies to legislation and government action, every act, including human rights legislation, must be interpreted in a way that is consistent with the Charter. So what it’s done is provide a unified approach to equality.Whilst we had ten human rights commissions, by imposing a constitutional equality right on top, this has brought them together.The practical example of how that worked is in dealing with case of sexual orientation.
Up until the Charter, human rights legislation across Canada varied as to who it applied to: we would have some jurisdictions for sexual orientation, some had race, some didn't.When the Charter came along there was a challenge to the legislation because human rights did not deal with sexual orientation and the Supreme Court said that now we have a Charter that sets out the parameters of equality, you all need to join together.So in looking at comparing the Canadian system to others, it is important to keep in mind that with the constitutional system there is a different approach to how you deal with equality rights along the way.
Basically, what we now have is a system which has four central rights under the Charter.They are the right to equality before the law, the right to equality under the law, the right to equal protection of the law and equal benefit.The reason they came out with those four parameters is that up until the Charter came into effect, rights were fully protected by a bill of rights which was a categorical approach. There was a case involving a pregnant woman who wanted to claim unemployment insurance benefit whilst pregnant and the unemployment insurance plan said she couldn’t, she could only apply for pregnancy benefit. The Supreme Court said there is no right protected because all pregnant women are treated in the same way.
So when they started to think about the Charter, they wanted to specifically address that categorical problem, and they did that by talking about equal benefit and protection of the law.It worked because one of the earliest cases of the Charter was exactly the same situation that ended with theopposite result.This case said no, it’s not a matter of seeing all pregnant women are treated the same.Is this person treated the same as people that are not pregnant or not women?The court found discrimination based on gender because the woman did not get the same protection of the law as a man.A man can apply for insurance employment benefits but a woman could not.
The human rights legislation has also incorporated fundamental principals on how you interpret it, but I think they are fairly critical.One is that treating people differently is in fact an entity for true equality. That came out of the first case heard involving nationality.A man from South Africa wanted to be a lawyer.The rules said if you want to be a lawyer you have to be a citizen of Canada.The court began to look at how to interpret equality rights. Basically they said when you look at the right you have to look at what the disadvantage is, you have to address the individual need as opposed to group needs.Essentially saying if you treat every body in an identical fashion you might end up with discriminatory treatment.The easiest way to see that is by looking at discrimination.If you have somebody that is blind and you hand them a piece of paper, they can't read it and it is discriminatory treatment. Every body gets that piece of paper but you are not taking into account the individual needs.
The case in which the court addressed this concept involved two women who were deaf.One of them was pregnant which is what caught the court's attention.They wanted sign language interpreters to accompany them to medical appointments. Interpreters were provided but provision was stopped.The women took the case to the court and said this is discrimination; the healthcare system should pay for us to have access to the interpreters.They lost at the first two levels.At the Supreme Court of Canada we intervened and we turned the case around by looking not at whether this isa medical service that should be funded, but is there equal benefit of the law in the provision of this service.Medical services in Canada are fundamental rights.The evidence was put forward that people that are deaf have difficulties sometimes in reading and therefore they may not get the same benefit from the service as somebody else.The lower court argument was that it is paid for by the Government, they can go to the doctor, they don't have to pay for the visit to the doctor, they are sitting in the doctor's office getting medical advice.Where the court was able to turn around and rule in favour of their case was in finding that in fact that they were not getting the medical service that you and I would get, they were getting a different service because medical service involves communication. That really illustrates the fundamental concept of equality rights: you look at the individual circumstances, you look at what the person is receiving and the impact on the person rather than asking does everybody get the same thing.
The biggest challenge in applying that, certainly in Canada, is the question of comparators.Nobody has argued against that as a principal but where we lose cases is on the choice of comparator. For example there is a case looking at health insurance, in which people with a mental health problem were treated differently to people with physical problems.If you have a physical problem you can continue on disabilities, if you have a mental illness you can only continue if you are in a hospital.The Supreme Court of Canada said no, that is discriminatory treatment because you are treating people differently based on the disability.The argument at the lower court was that they are treated the same because everybody on long term disability insurance gets the same benefit.Again we were able to change the comparator.
While I know that your law operates differently, one of the points that I would make is not only tothink about how Canada has framed the law but to think about how you can develop strategies to get over certain parts of the law.The Charter is very generic; it is two paragraphs.It’s a question of creating strategic litigation and figuring out how you can frame an argument that will address the issue in a way that the court is going to buy. And our experience is that almost anything will fly.One of the best examples relates to the distinction between indirect and direct discrimination.If it was direct discrimination, you hadto eliminate the discrimination.If it was adverse effect discrimination there was also a duty to eliminate it, providing that the employer could not prove there was a bona fide justification to have whatever the restriction was. If, for example, there was a policy that said all employers must be able to drive, it might be considered discriminatory because you could not hire people who were visually impaired, unless of course, the job was to drive.So you need to look at that bona fide justification and if there is no need to accommodate then you don’t accommodate. We spent years trying to figure out the distinction between adverse effect discrimination and direct discrimination and over the course of time the jurisprudence developed.
Looking at the question of reasonable adjustment, in Canada we started with reasonable adjustment in relation to religion and have only just applied it to disability. It is not until later years that there was caselaw that dealt with reasonable adjustment accommodation in cases of disability.Most of the law that we have in the disability sector came out of cases on other grounds. In 2000, the Supreme Court of Canada tied itself up wrestling with this notion of direct and indirect discrimination, and said no more. We are now going to look at whether there is a basis for reasonable accommodation to be considered.We are not going to worry about whether or not the discrimination is direct or indirect.
The reality is that it’s made no difference to the outcome except that it has made it easier to argue cases because you can focus on the issues rather than focus on the threshold issues.Secondly, it meant going on to the next step of equality rights principals, which is that there is also a positive obligation to prevent discrimination.So whilst the Charter on human rights legislation started with most of us talking about discrimination and preventing discriminatory treatment, when the court looked at the view to accommodate and said its not a question of direct or indirect discrimination, they also said that in the future employers need to take into account the duty to accommodate when developing policies: what they have done is create a proactive obligation on the part of the employer to develop policies which are barrier-free. That is a really important transformation in the way that the law is progressing.Because it creates a far more inclusive society. If we take as a starting point that the Charter and our equality legislation is about inclusion – it is a positive concept of inclusion that says we want full citizenship, the goal is that every one should be able to fully participate in society and we should have a society that is barrier free to a great extent – then you need to have that positive obligation incorporated into equality law rather than leaving it as a matter of trying to find out if somebody has done something wrong.
On a practical level what it has done is open the doors to better communication. As good as laws are, they also require implementation, and when you have cases where you are talking about discrimination and discrimination is perceived as negative and perhaps intentional, then it is hard to engage in constructive discussion with employers and others.When we moved towards prevention and arriving at human rights settlements it was based on this proactive change, and there was far less contention. We had positive results of settlements with major employers that looked at how we work together to achieve a common goal.Whilst in theory you can do that when you focus on the negative part of discrimination, I think there's a problem with communication that arises and the system becomes too legalistic.
Thefinal critical element to think about is dignity.This is something that we are having a great deal of difficulty with right now. Canadian law uses dignity in a number of ways. Firstly, it is incorporated in the definition of discrimination. This is not a new concept. The Universal Declaration of Human Rights incorporates dignity into the concept of equality. I think this is where we are really in a phase of development.Historically, the assumption was that equality rights should be limited to those who have been subject to disadvantage, who are part of a vulnerable group.In Canada that has been defined as women and visible minorities, people with disabilities, groups based on religion, nationality.But our Charter is open-ended in terms of grounds of discrimination.There is no limit to who might be covered by the Charter.Basically there is a list of grounds but it says it includes and is not limited to these grounds.The Supreme Court took seriously this notion that equality rights have to be able to evolve and respond to circumstances as they come along.