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LAWS 3503 Final: LAWS 3503 ONECLASS study guide
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Department
Law
Course
LAWS 3503
Professor
Diana Majury
Semester
Winter

Description
LAWS3503 –Equality&Discrimination (Prof.Diana Majury) Table of Contents Introduction..................................................................................................................................... 2 Conceptualizing Equality & Rights.................................................................................................... 3 Reading – “Looking White People in the Eye: Gender, Race, and Culture in Courtrooms and Classrooms,” Sherene Razack.............................................................................................................................................5 Reading – “When the First Quail Calls: Multiple Consciousness as Jurisprudential Method,” Mari J. Matsuda........................................................................................................................................................7 Reading – “Taking Liberties: A History of Human Rights in Canada,” Michael Ignatieff ..............................8 Reading – “Learning From Discomfort: A Letter to my Daughters,” Barb Thomas......................................9 “Dear White People” Film.............................................................................................................. 10 Equality & Rights............................................................................................................................ 12 Reading – “Sources of Difference,” Martha Minow ...................................................................................14 Reading – “Human Rights in the 21 C.: Take a Walk on the Dark Side,” Ratna Kapur..............................18 Equality & Rights II......................................................................................................................... 21 Reading – “Intersectionality From Theoretical Framework to Policy Intervention,” Wendy Smooth .......25 Reading – “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences,” Mary Ellen Turpel........................................................................................................................................28 Human Rights Codes & the Charter................................................................................................ 34 Grounds in Life and in Law: Race.................................................................................................... 38 Reading – “The Handling of Race Discrimination Complaints at the Ontario Human Rights Commission,” Donna Young...............................................................................................................................................41 Grounds in Life and in Law: Race & Sex.......................................................................................... 46 Reading – “Race, Racism and Racialization: Contested Concepts,” Vic Satzewich.....................................48 Reading – “The Easiest Way to Get Rid of Racism? Just Redefine It,” Greg Howard .................................52 Reading – Hill v. Air Canada (No. 2) [2003].................................................................................................52 Reading – Tanisma v. Montreal [2013].......................................................................................................55 Reading – Abbott v. Toronto Police Services Board [2009].........................................................................56 Reading – Islam v. Big Inc. (No. 2) [2014]...................................................................................................58 Race & Sex..................................................................................................................................... 59 Reading – “Ka-Nin-Geh-Heh-Gah-E-Sa-Nonh-Yah-Gah,” Patricia Monture................................................59 Reading – “Giving With One Hand, Taking With the Other: Comment on Matson v. Canada (Indian & Northern Affairs),” Gwen Brodsky..............................................................................................................61 Reading – “The Veil as a Site of Struggle: The Hejab in Quebec,” Shahnaz Khan.......................................62 Reading – Saadi v. Audmax Inc. [2009].......................................................................................................65 Reading – Saadi Appeal: Audmax Inc. v. Ontario (Human Rights Tribunal) [2011]....................................71 Disability........................................................................................................................................ 72 Reading – “Toward a Critical Theory of Dis-Citizenship,” Richard Devlin & Dianne Pothier......................74 Sexual Orientation & Gender Identity............................................................................................ 81 Reading – “Redrawing National Boundaries: Gender, Race, Class, & Same-Sex Marriage Discourse in Canada,” Jocelyn Thorpe ............................................................................................................................83 Affirmative Action.......................................................................................................................... 84 Reading – “Affirmative Action & The Myth of Merit,” Young.....................................................................86 Reading – “The Obliging Shell: An Informal Essay on Formal Equal Opportunity,” Williams.....................87 Reading – “The Racial Preference Licensing Act,” Bell ...............................................................................88 Introduction Intention is irrelevant in CDN law Use of language – historical context • Harm to community – perpetuates restrictive thinking • “Gay”, “lame” • Ableism – “blind” (equated with lack of awareness/understanding), “lame”, “schizophrenic”  trivializing • *Footnote “wilful blindness” 2 • Not everyone has the right to bring a case • “Aboriginal/Indigenous peoples” o Aboriginal = adjective (often used as a noun)  turning adjective into noun objectifies that characteristic; it is a descriptor o Peoples  different groups; e.g. First Nations, Inuit, Métis • Adjective vs. noun  “the poor”, “the disabled” Decision-making & tribunals  not judges & courts Canadian context Conceptualizing Equality & Rights “Learning from Discomfort: A Letter to My Daughter” – good example of a title • Not considered an “academic” paper  not something we’re used to reading and because it’s so informal it’s harder to pull facts from and determine what is important • Think about how you respond intellectually and emotionally when reading • Think about how our growing up has affected us, where our assumptions come from o Our understanding of ableism, homophobia, etc. • Analogy of the fishbowl  p. 163 • We’re not responsible for the past wrongs of others, but at the same time we live with the legacy of the past wrongs • Asymmetry  excluding a white person is not the same as excluding another racialized people because of the systemic issues that are present o Formal vs. substantive equality ▪ Formal equality: treating everyone the same ▪ Substantive equality: treating people so that they have the same rights  SCC has adopted substantive equality under s. 15 and rejected the notion of formal equality • Value your own experience; thinking critically about background • Self-awareness & self-critique “Taking Liberties: A History of Human Rights in Canada” 3 • Takinglibertiesmeansbehavingimproperly usedtorefer tosomethingsexual;whatwewould now call sexual harassment • Civil liberties vs. human rights… o Civil liberties: limited; civil scope; state-based; you have them b/c of the gov’t; rights of citizenship (e.g. freedom of expression) o Human rights: broader; inalienable; you have them b/c you are human; hate speech (conflict with freedom of expression) (e.g. access to clean water, shelter, food) • People are turning everything into a human right, trivializing the notion of human rights • Finding the right of human rights as political demands • Knowing the difference b/w moral claim, legal claim, political claim • “Humanrightshasshapedourtimebecauseitisprotean,becauseitcanservemanymastersandmany purposes” • Issues Ignatieff raises… o The nature of human rights, how do we deal with universality  cultural relativism o Neutrality & impartiality o Role of history and the past  can’t forget about the past, but can’t dwell on it either o Canada tends to think it is a leader of human rights and think that we are better than other countries and have it better ▪ “It’s all due to a few bad apples”  not a systemic issue “Response to Mari Matsuda” • Acting outside the consciousness of one’s time • You can critique the law, butuse it! Don’t wait for the activist revolution. We can do productive things w/ the law • Multiple-consciousness: seeing the world from various perspectives, including the oppressed perspective  appropriation? • Publishing story… o Purpose of her paper was to talk about discrimination, but the editors disregarded her race o Neutrality made it so she could not talk about her race  formal equality o We as the readers have to assume race when it is taken out of the piece, which goes against what the author wanted • Newspaper story… 4 o Reporter twisted her words on affirmative action  author was pro-affirmative action; reported opposite o It’s possible that the reporter put forward their own views and bias on affirmative action ▪ Might not have been intentional  maybe the reporter does not understand that view o Reporting on something pro-affirmative action might be controversial • Dream… o Speaks to how we generalize people  “Black people can relate to each other b/c of their race” o “Clarence Blackman” could be a reference to Clarence Thomas ▪ Clarence Thomas is the polar opposite of Patricia Williams other than they are the same race o The quail feathers could symbolize the oppression of the black people as they worked on the underground railroad “When the First Quail Calls: Multiple Consciousness of Jurisprudential Method” • Quail call  do not romanticize human rights Reading – “Looking White People in the Eye: Gender, Race, and Culture in Courtrooms and Classrooms,” Sherene Razack Encounterb/w colonizer&colonizedhighlygendered;turnoppressedpeoplesinto objects,to beheld in contempt or to be saved from their fates by more civilized beings Racism enables story of Western civil progress to be told Fanon’s goal = liberation of women of color (WOC) from the gaze and its consequences “…those ‘nasty’ unconscious fantasies & longings about contact with the Other embedded in the secret deep structure of white supremacy” – bell hooks Desire for contact  commodification of otherness and contemporary preoccupation w/ difference  gendered 5 E.g. female genital mutilation (FGM)  African & Asian women as victims of their cultures Binary of civilized and liberated Western women vs. her oppressed Third World sister E.g. the veil; stories of Third World men’s overall brutality towards women Ross: 1. Acknowledge that we constantly interpret words and acts of others  subconscious but conforming to our own society 2. Gain conscious understanding of what those culture-specific rules might be (e.g. cultural rules of eye contact) Emphasis on cultural diversity often descends to a superficial reading of differences that makes power relations invisible and keeps dominant cultural norms in place Position of innocence  move towards accountability Education for social change  disrupting hegemonic ways of seeing through which subjects make themselves dominant White as the color of domination… • Language of color to describe politics of domination & subordination  drawbacks… 1. Wraps arguments in a mantle of race 2. Impression that color is what matters most • Emphasis on physicality of encounter b/w powerful and powerless • Interlocking analysis  slip into positions of subordination w/o seeing how this simultaneously reflects and upholds race and class privilege • “Race to innocence”: belief that we are uninvolved in subordinating others; fail to realize that we cannot undo our own marginality w/o simultaneously undoing all the systems of oppression • White female gaze often sustains rather than disrupts white supremacy, capitalism, and patriarchy • Begin to stop performing ourselves as dominant, as well as better calculate how to return the gaze 6 Rights thinking, essential woman, & the culturalization of differences… • Responses that inhibit development of critical consciousness = denial of oppression • Enabled by: 1. Rights thinking o How can we talk about power and privilege using a concept – rights – that leaves no room for a discussion of histories of subordination? o Based on notion that we are all individuals who contract w/ one another to live in a society where each of us would have the maximum in personal freedom  Therefore, no marginalized; no historical relations of power 2. Essential woman o Cannot go beyond essential woman w/o understanding that women’s realities are simultaneously shaped by patriarchy, capitalism, and white supremacy o Only save those whose plights do not implicate us o Violence against women w/ disabilities o Additive analysis o Idea that all women share a core of oppression on to which can then be grafted their differences, has enabled a masking of how systems of domination interlock 3. Culturalization of differences o Contexts of victims of violence & their attackers understood as cultural and frozen in time, rather than as dynamic, historical, and social o Cultural differences mask inferiority Reading – “When the First Quail Calls: Multiple Consciousness as Jurisprudential Method,” Mari J. Matsuda Consciousness of oppression Bifurcated thinking  shifting b/w consciousness Ideas emanating from feminist legal theories and legal scholars of color have important points of intersection that assist in fundamental inquiries of jurisprudence *Certain forms of consciousness are not welcome in certain spaces 7 Outsider scholars reject narrow evidentiary concepts of relevance and credibility Concrete and substantive visions of justice flow naturally from experience of oppression Multiple consciousness as a well-defined and acknowledged tool of analysis Best lawyers are able to detach law and see it as a system that makes sense only from a particular viewpoint  operate w/in that view, then shift out of it for purposes of critique, analysis & strategy Multiple consciousness for lawyers  see the world from the standpoint of the oppressed (e.g. through pro bono work) Abstraction and detachment = ways to avoid discomfort/confrontation w/ oppression New jurisprudence  founded on reality of oppression, not on ideal of neutrality Reading – “Taking Liberties: A History of Human Rights in Canada,” Michael Ignatieff Rights = legal claims, moral norms, and political demands 1. Legal  codified in int’l conventions and state constitutions enforceable at law 2. Moral  express core standards; how human beings should treat each other 3. Political  offer legitimacy to campaigns for social justice ^ Each in dynamic tension w/ one another Human rights = protean/versatile  therefore, deeply contested • Influential example of globalization of ethical language • Historical diffusion of humr language often viewed as an exercise in Western moral imperialism o But, successful in reception b/c it gives groups a language in which to advance their claims and find political voice • See oneself as agent and actor  entitled to dignity and rights; capable of acting politically • Humr as saving source of legitimacy for Western societies • Ought to be moral practice, not ideology 8 • *Ought to be disciplined by consistency, impartiality, and neutrality Reading – “Learning From Discomfort: A Letter to my Daughters,” Barb Thomas “Political correctness” – label slapped on anyone who feels and expresses revulsion against the big wounds (e.g. racism, sexism, imperialism, poverty) Stay w/ moments of discomfort • Constant discomfort zone of woman experiencing sexism vs. less pressured unease as white person, not a target of racism Parents’ effect on questions asked or not asked and world views “Absent presence” or “present absence” of 4-fifths of the world “White” – mixture of deference, resentment, and polite distance Power behind the exercise of racism Women’s struggles shaped by race and class  question feminism that only acknowledged some women and some rights Resisting white supremacy = everyday, active set of interventions Respecting people’s need for caucusing/organizing  do your share of the work Notion that Aboriginals and POC fighting racism = unremarkable Resisting abusive aspects of your culture Shame is immobilizing unless used for change 9 1. “…you are not responsible for wrongs committed before you were born, but you can’t escape the legacy of those wrongs” (p. 171)  no such thing as doing nothing 2. “…use discomfort to pose new questions to yourself and to seek new insights” (p. 172) 3. Hurt feelings of excluded privileged person vs. sustained, systemic, and pervasive damage 4. Value own experiences 5. “…make the most of who you are w/o damaging other people w/ less social power than yourself” (p. 172) “Dear White People” Film Oofda – modulates blackness depending on what crowd wants from them Nose-job – smooth their black edges and try to fit in; worst fear is that their blackness might draw undue attention so they use it to self-deprecate 100 – keeping it 100; being black as hell “Blacker than thou” “Looking White People in the Eye”, Sherene Razack • Looking people in the eye = cultural assumption; place to unpack “cultural differences” (oversimplification; used as a model for dealing with much more entrenched problems) • Articleisachallengetotheassumptionthatproblemsofracismcanbefixedthroughanunderstanding of cultural differences • While understanding cultural differences may be important  only part of issue • Cannot deal w/ racism without looking at history of domination/oppression & structural inequalities • Notion of eye contact as objectifying o Can turn a subject into an object – “gaze” o Eye of the colonizer – depersonalizing o Legal gaze, academic eye – also depersonalizing/objectifying • Looking someone in the eye – cultural miscommunication o Western culture ▪ Eye contact = paying attention, respect 10 ▪ No eye contact = discomfort, uninterested, lying o Aboriginal culture – direct eye contact is seen as disrespectful; looking down is respectful o Courtroom – problem for Aboriginal people accused of crimes (issue of credibility) ▪ Cross-cultural credibility prediction is impossible • Recognition of miscommunication = starting point; assumes that other factors are not at play • Need to recognize dominant & subordinate players • Razack – cannot be sure it is actually cultural miscommunication  may be a response to racism & expectation of racism, deferral to dominant group; may be a resistance to dominant culture; **over- simplification • After recognizing cultural miscommunication  assumption that subordinate group will adapt to dominant group (i.e. Western praxis as default) • Mustconsidercontextofracism,colonialism,racialgenocide,etc.thismustbebroughtintocriminal trial as well • As members of dominant group  desire for differences to be over-simplified • Cannot divest ourselves of our privilege & historical effects of those privileges • Power imbalances as source of inequality • Importance of understanding • Critique of multi-culturalism… o Basic notion of acceptance of difference; celebrate different cultures (e.g. Canada) o Concern = extent towhich that is a tolerance of difference rather than embrace of difference o In practice, you do have to assimilate (mixed message) o Process of “othering” – interrelated w/ issues of appropriation o Notion of inclusion – ask who is doing the including and on what terms? ▪ Who has the power to invite? ▪ E.g.invitingIndigenouspeoplesintoourlegalsystems,butitisanalienplaceforthem ▪ Razack  “harmonious but empty”; sounds good but has no substance • Dominant group has a vested interest in seeing things as cultural differences (formal equality/symmetrical approach) • **Cultural oppression replaced with cultural difference • One of Razack’s critiques – of white feminism… o Seeing themselves as “gender saviors”  rescue women of other countries from sexist practices of their countries 11 o Rely on notion of essentialwoman  allwomen share the sameessential corewhichisabout “womanness” ; ignore differences (*critique of essentialism) o Othering of racialized women & their practices in the name of “helping” them o Sustaining white privilege/class privilege  using racialized women as domestic workers & nannies (role of homemaker) • Razack is NOT making an argument for cultural relativism – i.e. cannot critique other cultures on the basis of comparison to our own  • Don’t turn a blind eye to sexism and misogyny in other cultures  but it is not our place to run in as saviors (e.g. the veil, child marriage/arranged marriage, polygamy, honor killings) • Razack draws parallels to practices here – female genital mutilation  anorexia, Botox, high heels, tight skirts o Choice – Western practices are a function of choice? Societal pressures? • Categories on which oppression is based  therefore, strategic essentialism o Sometimes need to operationalize those constructs b/c of the context in which they have been used • Interlocking model of discrimination – intersectionality o We are all made up of multiple identities, even when discriminated against o Dominant vs subordinate identities o Critique of identity categories – categories still have meaning in a world in which there is discrimination based on those categories o Not reductive • Critical of concepts of rights as an ahistorical concept that ignores histories of domination & subordination o Critique of individualized approach of liberalism – notion that we are all just right-holding units Equality & Rights “Sources of Difference”, Martha Minow • Dilemma of difference – problem if you acknowledge difference, and problem if you don’t o Rooted in concept that equality means sameness o Formal vs. substantive equality 12 • Deny relevance of difference (negative consequences are invisible)  neutrality in service of bias Vs. • Acknowledgedifferencejustifiesdifferentialtreatment;usuallymeansworsetreatment(e.g.Indian Act) • E.g. concerns about gender neutral language – historically, written with male pronoun o Universal, gender-neutral “he” o Non-gendered language vs. gender-neutral • To challenge the category, you have torecognize and talk inthe language of the category reinforces the notion that the category exists (Catch-22) • Challenge notion of accommodation – e.g. “accommodating” disabled people because they are not the norm • Substantive equality = equity st “Human Rights in the 21 Century”, Ratna Kapur • Prisons are the new residential schools? o Residential schools o 60s scoop – removal of Indigenous children for adoption into white families o Under-funding child welfare services o Continuing fallout receives much less attention • Humr as a model of assimilation? • University as site of assimilation? • The role of apology o Many groups seek apology, often in conjunction w/ compensation • Focus on humr ignores other strategies • Humr = one-size-fits-all vocabulary; ignore cultural/ideological/political differences • More humr violations in the 20 C than at any other point in history  all talk, no walk • Right wing arguments… o Legislating the way people think? – morality o Economic – civil liberties o Floodgates argument – if you do it for X, you have to do it for the alphabet; marginalized groups now have the advantage (e.g. “playing the race card”; special treatment) o Use of humr discourse for conservative agendas • Left wing arguments… 13 o Humr as form of imperialism & western dominance • Critique of universality • Tend to romanticize notion of liberalism/inclusion  problem is the theory, not just the practice; exclusions and subordinations are part of liberalism • Liberalism/humr are premised on an ‘Other’  e.g. refugees; trans folk; terrorist • Othering process – incarcerate; deport; remove citizenship; poverty • Humr as shield to hide inequality Reading – “Sources of Difference,” Martha Minow “Risk of non-neutrality – the risk of discrimination – accompanies efforts both to ignore and to recognize difference in equal treatment and special treatment.” (49) Difference = carries stigma & precludes equality; associated w/ deviance; assumption that sameness is a prerequisite for equality 5 unstated assumptions… I. That “differences” are intrinsic, rather than “expressions of comparisons between people on the basis of particular traits” (50) • Assume importance in the comparison process  valuing some traits over others II. Norm = unstated point of reference • Reference point promotes interests of some but not others • Equality  equal compared with whom? • Equality = removing/ignoring a feature distinguishing an individual from a presumed norm, but leaving that norm in place as the measure for equal treatment • Pole – “people are equal b/c they could all take one another’s places in work, intellectual exchange, or political power if they were disassociated from their contexts of family, religion, class, or race and if they had the same opportunities and experiences” (51) III. Treat seeing/judging person as unbiased  but, no one is free from perspective IV. That perspectives of the judged are either irrelevant or already taken into account through the judge • Luxury of those w/ more power or authority • Treats person’s self-conception as unrelated to how other treat them 14 V. That existing social & economic arrangements are natural and neutral • That any departure from the status quo risks non-neutrality and interference w/ free choice Maintaining historical patterns embedded in status quo is not neutral Alternatives to the assumptions… I. Assumption: Difference is intrinsic, not a comparison • Litigants & judges treat the problem of difference as what society should do about the “different person” • Sharply distinguished categories based on selected facts & features • Categorization to cope w/ complexity  inevitable feature of human cognition? • Legalanalysis–askswhethergivensituation“fits”inacategorydefinedbyalegalrule(finding of similarity/difference = key step) • Act of classification makes the boundaries of class  inclusion and exclusion • “Perceptionsandassessmentsofdifferencepickoutthetraitsthatdonotfitcomfortablyw/in dominant social arrangements…” (55) II. Assumption: The norm need not be stated • Strong reference point  therefore, specifying it not thought necessary • Unstated/invisible norms  white, heterosexual, able-bodied, male • “Difference” assigned to women = e.g. pregnancy o “Supreme Court’s treatment of issues concerning pregnancy and the workplace highlightsthe power of the unstated norminanalyses ofproblemsof difference”(57) o Capacity to become pregnant is a difference  does not justify treating them differently on unrelated matters o Favorable treatment on the basis of pregnancy? – California Federal Savings & Loan Association v. Guerra (Cal/Fed) ▪ Any distinction on the basis of pregnancy/sex perpetuates negative stereotypes Vs. ▪ Denying facts of pregnancy could only hurt women ▪ Treating women like men, or treating women specially? 15 ▪ Majority – no conflict b/w Pregnancy Discrimination Act and law that required qualified reinstatement of women following maternity leaves ▪ Majority – “if there remains a conflict…[it] should be resolved by the extension to men of benefits comparable to those available to women…” (59)  use women’s experiences as reference point • E.g. assumption of able-bodiedness manifested in architecture • New norm  hot potato of exclusions • Legal discourse full of the language of abstract universalism III. Assumption: The observer can see without a perspective • Aspiration to impartiality in legal judgments  risks obscuring inevitable perspective; harder to challenge impact • Impact of unacknowledged perspective can be oppressive • “Objective observer” … o Acknowledge limited perspective of gov’t representatives o Rejects viewpoint of religious group • Plessy v. Ferguson – “…justices manifested their viewpoint as members of a dominant and powerful group, which would never feel stigmatized by segregation” (65) • Judge Motley asked to recuse herself for potential bias in a sexual harassment case in which the plaintiff was a black woman; Motley had worked on sexual assault cases before she was a judge • Bias o Worry that Motley would identify with the plaintiff o If we take race/gender/sexuality as indicators as bias, we are all biased o Concern of bias when judge is “different” o Want judges that are awareof their perspective; not those whopretends they do not have perspective • **R v. RDS– 1997 SCC case** o Judge Sparks black woman judge in Canada accused of bias o Halifax – young black man arrested for assaulting a police officer o Black male youth (RDS) was arrested by white female officer (Stienburg) who was relatively inexperienced on the force. o RDS: Stienburg arrested him for not being silent during an arrest. 16 o Stienburg: RDS hit her with his bicycle in an attempt to frustrate the arrest effort and free the suspect. o There was no other substantial evidence entered into the trial. o At trial, the judge, Sparks, J., acquitted the accused: o "I believe that probably the situation in this particular case is the case of a young police officer who overreacted. And I do accept the evidence of Mr. S. (the accused) that he was told to shut up or he would be under arrest. That seems to be in keeping with the prevalent attitude of the day." o The last sentence in the paragraph above became to focus of the later appeals up to the Supreme Court of Canada.  reference to racism in Halifax police force o SCC – not an apprehension of bias (in judge’s favor); split decision IV. Assumption: Other perspectives are irrelevant • People use stereotypes as though they are real & complete • See from own POV, but also fail to realize another POV might exist • “Searchingespeciallyfortheviewpointofminoritiesnotonlyhelpsthoseinthemajorityshake free of their unstated assumptions but also helps them develop a better normative sense in light of the experience of those with less power” (68) • Multiple worlds inhabited by members of minorities • Sherbert v. Verner – gov’t’s failure to accommodate religion amounted to hostility toward religion • Judges assume that their perspective is universal/superior • McCleskeycase–deathpenaltyisdiscriminatoryb/cofstatisticalevidencethatablackperson convicted of killing a white person had more likelihood of being sentenced to death V. Assumption: The status quo is natural, un-coerced, and good • Status quo = general social and economic arrangements • 3 propositions… 1. Natural – goal of gov’t neutrality demands status quo b/c existing societal arrangements are assumed to be neutral 2. Good – gov’t actions that change status quo have a different status from omissions that maintain status quo 3. Un-coerced – prevailing societal arrangements are not forced on anyone 17 • Difference may seem salient b/c dominant institutional arrangements were designed without that trait in mind • “…government’s rules cannot be neutral in a world that is not neutral” (71) • “…rules seen as neutral produce different results for different people only b/c people make free choices that have different consequences” (72) • Social attitudes explain status quo being natural/good/chosen Reading – “Human Rights in the 21 C.: Take a Walk on the Dark Side,” Ratna Kapur Illusory sense of progress in human rights – “era of human rights” Proliferation of laws in the name of human rights  good vs bad? 3 normative claims on which human rights project is based… I. Narrative of progress – that “human rights represents a step forward in the progress of human development and civilizational maturity” (666) II. Discriminatory universality – “dehistoricized, neutral and inclusive claims” (666) III. Troubling subjects – “assumptions about the ‘Other’” (666) “Humanrightsbecomeasiteforreconcilingmomentsofruptureandexclusion,andbringingthepastinto synch with the norms and values of liberalism, rather than bringing about a deeper interrogation of those norms and values.” (667) Kapur  postcolonial feminist legal thinker (*position oneself) (I) Narrative of Progress th • Establishment of human rights in mid-20 C • State sovereignty no longer accepted as excuse for humr violations • Belief that history has purpose & direction • “What has emerged is how it is possible to read the virtuous script of human rights against the grain, to read another narrative into the story line that was, perhaps, never intended by those who inspired the project or to accord a meaning to it that counters or subverts any progressive reading it might have had.” (669) ????? 18 • “Golden Era narratives” o Humr as corrosive tool  erode legitimacy through sovereignty; threaten national/social cohesion o Legitimacy, security, & social cohesion reside in the glories of the past o Encroachments of humr law on sovereignty should be ceased • Reactionary & conservative agenda o E.g. the Vatican – oppose violence against women; but, preserver of the family o Focus on “Third World” women (e.g. sex trafficking) • “…human rights is an arena where different visions of the world are fought out and how this struggle is obscured in linear accounts of human rights” (671) • *Discourse permeated by  imperial ambition, assertions about moral & civilizational superiority, religious evangelicalism • Tone of language  muscle-flexing & macho talk vs. gentler tones of women’s rights, peace, democracy, etc. (II) Discriminatory Universality • Regards humr as based on notions of objectivity, neutrality, and inclusion • “While there is an assumption that certain political practices are indeed universal, such as liberty, equality and freedom, these ideals seem to stumble and falter at the moment of their encounter with the unfamiliar, the ‘Other’ or difference.” (673) • Universality vs. ‘the other side of universality” – da Silva • Criticism of practical liberalism = exclusions of past  correct through gradual inclusion of previously excluded • 19thC assumption that European states were civilized  to enter community of int’l law, must resemble the European • *Liberal tradition of humr rights must incorporate arguments about freedom and equal worth…AND, civilization, cultural backwardness, racial and religious superiority (III) Troubling Subjects • Sovereign, autonomous subject is unable to survive w/o existence of an ‘Other’ • 3waysinwhichthe‘Other’has been addressed in relation torights discourse (notrigid; overlapping) … o Assumption that difference can be erased & ‘Other’ can be assimilated 19 ▪ Modern assimilation in the context of new citizenship and nationality laws ▪ “Only certain recognizable identities can cross into the legal zones” (677) o Assumption that difference is natural and inevitable ▪ Colonialism  ‘Other’ treated as lacking capacity to reason; incapable of decision- making; culturally & morally inferior ▪ Difference justifies denial of legal rights & sovereignty – “rule of colonial difference” (678) ▪ Women in need of protection by a paternalistic state/male guardian ▪ Assumptions about difference reinforce gender and cultural stereotypes (gender essentialism) ▪ Highly protectionist legislation; protective detention & intervention strategies ▪ Women as victims and objects in need of rescue informs contemporary feminist politics o Assumption that threat of the ‘Other’ justifies incarceration, internment, and/or annihilation ▪ ‘Other’ = outside western liberal democracy; threat to the nation-state; legitimately denied humr protections ▪ Legal tools being crafted (i.e. anti-terrorism & anti-migration laws) to deal with new ‘Others’  “re-establish the moral, cultural and national certainties of the past as well as the security of the sovereign nation-state and sovereign subject” (680) ▪ Creation of new categories  e.g. “unlawful non-citizens” ▪ “…hierarchies…produced in and through the discourse of rights” (681) ▪ The “dark side” Take a Walk on the ‘Dark Side’: Tentative Proposals • Author – not favoring rejection of humr; useful vocabulary • Confront the “dark side” of humr  complicit in makingworld less stable, less peaceful, more divisive, more polluted, more violent • Linear narrative of progress • “The dark side enables everyone to use the vocabulary of human rights, while at the same time advance agendas that may not be emancipatory ones at the end of the day” (683) • Kapur suggests… o “…move beyond debates between the universal character of humr and their historical particularity” (683)  recognize humr as a site of power; vocabulary of humr is powerful 20 o Reorientation in human rights scholarship & education  positionality; i.e. postcolonial perspective (”insights into how…zones of exclusion were and continue to be produced”, 685) o Similar to multiple consciousness, Matsuda o Major shift in location of the project(i.e. whois telling the story & how it is told)  read from excluded zones; e.g…. ▪ Economic globalization & neo-liberal governmentality ▪ Cross-border movements ▪ Religion (can humr remain secular?) “These engagements attest to the importance of challenging the unhelpful dichotomies between religion and rights, the complex and contradictory nature of the human rights terrain, and why the meanings of rights need to be constantly monitored, revisited and interrogated.” (687) Equality & Rights II “Minority” and “visible minority” • Anyone who’s not the dominant group • It’s about numbers  minority in numbers • Humr  has come to mean “the subordinated” • E.g. women are not the minority; by numbers, we are the majority • Dismissive word to describe subordinated group • Ignores the power dynamic • Use subordinated instead Authors for this week ask us to reflect on terminology “Applied, work with” rather than “describe” • Avoid general terms – e.g. talking about white privilege (too general of a term) • Draw specifically on whatyou’re learningfrom the material (i.e. what new thingabout white privilege) • Drawing the connection is just the starting point • Explore ideas that are new to you • No right answers  be thoughtful & explain 21 • Not necessarily informal tone Matsuda uses multiple consciousness in a very particular, political, jurisprudential manner • Was the movie itself an exercise in multiple consciousness? • *Pathway to a more just world • Start from the standpoint of the oppressed person Key concepts – (*KNOW THEM*) • Asymmetry • Formal vs. substantive equality • Intent  relevant to perspective; not relevant to law when it comes to discrimination • Intersectionality “Intersectionality from Theoretical Framework to Policy Intervention”, Wendy Smooth • Intersectionality developed by Crenshaw (critical race legal scholar) • If law was truly able to take up intersectionality  paradigm shift in human rights law • Smooth focuses on structural analysis of intersectionality • Structures of inequality make categories of identity important  this is level at which we need to address categories • Law tends to be individual-based (not focused on structures/groups) o But, humr are group-based, category-based rights (says Dr. Majury) o Contradiction re: group-based rights o *Tension in law in dealing with individuals’ issues that reflect on their membership in groups • Interplay between individuals, groups, and structures  dynamic • Crenshaw was working in labor law w/ black women who were not getting employment o Discrimination was not recognized because black men were being hired, and white women were being hired o Discrimination only when you look at the intersection • *We are more than the sum of our parts – concern about additive approach • Instead, interlocking identities/subordinations • Think about all the grounds upon which subordination and domination occur o But, concern that these categories just become a list (i.e. race, gender, sexuality) o Virtually impossible to consider them all  requires new thinking/paradigm shift 22 o Challenge to not do a checklist, but still do an analysis • Smooth’s principles for working w/ an intersectional approach (*see all of them in reading notes)… o Resist additive analysis – intersecting rather than parallel; concepts are mutually constitutive o Privilege and marginalization are not mutually exclusive – echo of Minow’s “difference is not intrinsic”  we make them categories of inequality “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, CulturalDifferences”, Mary Ellen Turpel • One of many differing Aboriginal perspectives • Lack of providing solution?  her point is that we have to rethink our law altogether • Looking at implications of cultural difference re: legal analysis • Turpel takes a cultural differences approach (which is what Razack critiques) • Constitution is legalistic, adversarial, legal set of doctrines and theories developed according to needs of Anglo-European colonialists  top-down model • How is Charter’s cultural authority explained and rationalized?  Turpel says it is not explained or rationalized; rather, maintained through hegemony o **Hegemony: dominant group gets into everyone’s heads, such that we think there is no other way to do it (the right way; the way things are) o Acquiesce to power because we think it’s the way things are o Extent to which we accept the Charter is the extent to which we buy into hegemony • Charter is oppressively hegemonic in its perception of its own cultural authority  doesn’t realize its cultural perspective (hard for the rest of us to acknowledge its position) • Critical of relying on concept of race (Turpel refers to it as simply skin color)  more interested in notion of cultural differences b/c it offers a more positive starting point (focuses on values and assumptions, different ways of knowing and understanding) • Race is the ground in our legislation, not cultural difference • Turpel – Charter is a mono-cultural document o Do we have a shared vision? - Turpel argues we do not; how to proceed in the absence of a shared vision o Raises problems about nature of legal knowledge, reasoning and decision making o Nocommonlanguagedominantculturefailstotakeintoaccountdifferencesbetweenitself and Indigenous cultures, and differences within Indigenous cultures o Charter “others” Indigenous cultures 23 o Legitimize power relationships o Rights paradigm of Charter is unreceptive to concept of cultural difference o Inherent impossibility in using one language (Canadian legal system) to try and further understanding of a different belief system  CDN law incapable of understanding Indigenous culture • *Western culture = text-based  antithetical to oral Indigenous cultures o Whether oral histories can be accepted as evidence o Don’t trust oral histories b/c our culture is based on writing history • Charter preamble – when you don’t have confidence that the judges will understand the purpose of the law o Recognize supremacy of God and the rule of law o “Supremacy of God”  goes on to discuss discrimination on basis of religion o Set the stage of the document; context? Interpretive tool? o “No one is above the law”  law applies to everybody; shield against state action (state is also bound by the law); o *Indigenous peoples don’t have this understanding of an overarching law  for them, law is about local understanding • Rights as legal category through which law filters, through which differences are addressed/managed o Turpel argues that this rights paradigm has profound implications  insensitive to its own cultural position o Differences are transformed into rights and are mangled in the process • “We just need to be better”  Turpel says this is not enough/possible o Doing this perpetuates domination & false reconciliation of differences (quintessential Canadian value?) o Kapur’s argument that response reinforced the problem o Promoting humr may be a part of the oppression  mask social and political conflict • Turpel’s critique of centrality of notion of private property o Individually owned property, individual rights  contra Indigenous understandings o Placement of individual at center of legal system o Collective rights would be supplemental to individual rights, at best (collective rights contested in legal arena as it is) o Indigenouspeoplemakingcollectiverightsclaimshave,byvirtueofmakingthatclaim,already lost their ground 24 • Not about a gap in knowledge  needs to be transformative (shift or loosen paradigm, rather than add to it) • *Difficult to decide about cultural difference from a particular cultural standpoint • Fundamental challenge • Judges being mired in the legal system; possibility/challenge of judges admitting they’re wrong Reading – “Intersectionality From Theoretical Framework to Policy Intervention,” Wendy Smooth Intersectionality:“assertionthatsocialidentitycategoriessuchasrace,gender,class,sexuality,andability are interconnected and operate simultaneously to produce experiences of both privilege and marginalization” (11) • New “social literacy” • Smooth – developments of intersectionality from Western (i.e. US) perspective Change categoriesof analysis foroutsideWest/U.S.(different politicalcontexts) BUT,coreelementsof workings of power are the same Focus on structures and institutions  challenges… • Essentialized notions of identity • Idea of naturalized categories w/ distinct boundaries Must understand internal logic and organized patterns of structures/institutions Address processes by which multiple identities are constituted; how identities shift and evolve Situate intersectionality in study of politics and policy Intersectionality and the politics of origin stories… • Roots in black feminist theory  often forgotten • “Intersectionality” = academic “buzzword”; “it” theory • Intersectional talk w/o the intersectional walk 25 • Self-excusing (Shields): acknowledging intersectionality w/o including substantive intersectional analysis  therefore, stagnating process • Important aspect of intersectionality = uncovering operation of power and privilege that render individuals/groups marginalized • Most useful when revealing hidden power differentials that are naturalized A brief genealogy of intersectionality… • Crenshaw focused on racial discrimination cases; conceptualizations of discrimination using single axis framework under the law • “Hybrid” identities preclude people from serving as “pure” representatives • Cooper – progress of African-Americans depended on progress of African-American women • Triumvirate of oppression  race, class, and gender Principles of intersectionality… • Intersectionality = in flux; evolving paradigm; concerned with… 1. Resisting additive models that treat categories of social identity as additive, parallel categories and instead theorizes these categories as intersecting o Categories are not parallel, but intersecting o Aspects of identity are constitutive – each informs the other o Social categories have different organizing logics 2. Anti-essentialism and insists upon variation w/in categories of social identity o Move away from essentializing or reducing experiences (e.g. “the lesbian experience”) o Avoid producing secondary marginalization  when issues are defined by needs of more privileged within a group 3. Recognition that social identity categories andthepower systems that givethemeaning shift across time and geographical location o Cannot conclude that power operates in the same ways across contexts of time and location o Sociopolitical and economic histories o Social and political meanings contested and restructured at individual level and at societal level 26 4. Embracing the coexistence of privilege and marginalization acknowledging that they are not mutually exclusive o Coexistence of privilege and marginalization o PatriciaHillCollins–“matrixof domination”:actorscanbe victimized but alsoexercise power over others o No “pure victims” or “pure oppressors” 5. Changing the conditions of society such that categories of identity are not permanently linked to sustained inequalities in efforts to build a more just world o Intersectionality as descriptive framework/research paradigm VS. intersectionality as political concept; emancipatory politics w/ goal of social justice o Smoothsuggestsintersectionalityasmeanstocontestpowerarrangements,notjustexamine Intersectionality, agency, institutions, and institutional processes… • Political science  complements intersectionality by providing balance b/w individual and structural levels of analysis • Law = focus on individual • Intersectionality = resists focus on individual • Structural analysis required for intersectionality • Smooth – intersectionality overlooks role of institutions/structures • Resistance strategies understood in context of institutional processes and historical events  more integrated model • Intersectionality overstates agency of individuals and their freedom to act independently • Institutions include law, public policy, governing bodies, social movements • Smooth examines legislative experiences of African American women  effects of race and gender on meanings of legislative power and influence • Formal leadership structure  shows race and gender hierarchies • Exclusionfrominformalpowerstructuresinnercirclesofpowerunderminepowerofformalleaders • Racialized and gendered institutional processes and structures in the legislature • Gender & race as identity categories AND mediating forces Unresolved tensions… 27 • Intersectionality lacks clear/concise definition; lack parameters; does not specify categories; does not specify relationship b/w categories; etc. • Elements that make intersectionality attractive to scholars make for uneasy alliance w/ political science and other social sciences • Issues… 1. Which are the appropriate categories for analysis 2. Appropriate methodological modeling of intersectionality (e.g. variables as dichotomous is problematic) Seizing the moment: intersectionality & equity policies… • Intersectionality as tool in policy making? (e.g. by United Nations and European Union) • Difficult for advocacy and interest groups to deploy intersectionality  not supported by political environment • Strong tendencies by states to adopt equity remedies organized around a singular axis • Policies assume all inequalities share the same history and internal logic Reading – “Aboriginal Peoples and theCanadian Charter:Interpretive Monopolies,Cultural Differences,” Mary Ellen Turpel Sensitivity to cultural differences = essential for understanding Aboriginal rights in Canadian law Critical analysis of cultural self-image of CDN humr system Increased tolerance of difference in political/social/legal institutions Charter and conceptions of rights can be situated cultural  not universal or progressive Question cultural authority of Charter & constitutional legal analysis (esp. re: Aboriginal peoples) Cultural authority: “authority which one culture is seen to possess to create law and legal language to resolve disputes involving other cultures and the manner in which it explains (or fails to explain) and sustains its authority over different peoples” (4) “Culture” and “cultural difference” instead of “race” and “racial difference”  more expansive; includes different ways of knowing (not just about skin color) 28 Thesis = “…cultural differences, at least First Nations’ cultural differences, have not been considered as a legitimate part of, or challenge to, constitutional interpretation” (5) Turpel  Aboriginal woman; lawyer; law professor CULTURAL DIFFERENCE IN CONSTITUTIONAL LAW Differences between dominant culture and Aboriginal peoples VS. differences within Aboriginal cultures Textual insensitivities of Charter informed by cultural & social reinforcements Constitutional system = “system of a particular historical and cultural set of circumstances and interests” (6) “…the entire process and substance of constitutional development and interpretation is the construct of a highly legalistic, adversarial, and abstract set of doctrines and theories which developed according to the needs of the predominantly Anglo-European colonialists” (6) The Textual Offence • How to dismantle the colonial tendencies of the Charter using only the language of the dominant • Preamble to Part I of the Constitution Act, 1982  “Canada is founded upon principles that recognize the supremacy of God and the rule of law” o Monocultural dominance o Cultural dissonance o Culturally hegemonic  Canada is believed to have been founded by dominant culture o Aboriginal spirituality is excluded under these notions • “To what extent is the Canadian constitutional system capable, ideologically, of admitting cultural differences?” (8) The Rights Paradigm • Humr discourse = display of cultural imagery 29 • “The struggle over the division of social, political, and economic power in Canadian society has been formulated by the Charter as a set of rights claims or as a dispute over rights in order to give it constitutional currency” (9) • Cultural differences framed w/in predetermined mode of reasoning (Anglo-Europeanlegal discourse) • Provisions themselves are construed as exceptional/special provisions (i.e. sections 25 & 27) • Argumentsformulticulturalismpresumedifferencestobe“minority”mattersmanageablethrough the majority-conceived Charter • “…the rights regime is dominant, sanctioned and elevated as the supreme law…” (10) • Rights discourse appropriated by Aboriginal peoples; encouraged to do so • “Support” of Aboriginal peoples by legal community perpetuates their domination (false reconciliation of differences) • “…concealing the painful experiences of Aboriginal peoples under bureaucratic rule” (12) • The dominant group are trying to reconcile conflicts • “…inability of legal categories and descriptions to account for the lived experiences of Aboriginal peoples in Canada” (13) • **Humr progress part of oppression of Aboriginal peoples? • Perception of cultural difference as an imperative to shift paradigm of knowledge VS. cognitive gap to be filled (i.e. legal analysis) • **Turpel  recognize rule of law, humr, and judicial impartiality as culturally-specific beliefs (not universal) • Conceptualize cultural differences as problems w/ no common grounding • Individualism (à la Hobbes & Locke) underpins the Charter  notions of property and exclusive ownership o Idea of absolute right to property = cornerstone of idea of rights in Anglo-American law o Rights = special zone of exclusion wherein individual is protected o Metaphors of “fence, mapping, and trespassings” (16) o Notion of protection from social/legal intrusion (i.e. concept of liberty)  justification for rights claims; guided by maximization of wealth & happiness o Self-interest o Individualist description = privileged by law and humr discourse • Turpel takes issue with 2 aspects of collective rights stream of legal scholarship on the Charter… 1. Tendency to conceptualize collective rights as “oughts” o Respect for cultural differences more theoretical than actual 30 o “…dominant European culture continues presumptively to set the terms of tolerance for collective differences” (19) 2. Extent to which these arguments are responsive to cultural differences  presumption that Aboriginal peoples can unproblematically engage in adversarial legal process o “The legal textual and interpretive context in which collective rights would have to be advanced is so foreign to Aboriginal peoples, so abstract and removed from their own social or political context, that simply making a claim requires accepting the dominant cultural and conceptual framework” (20) o Cultural framework = predisposed to insensitivity to Aboriginal peoples culture • **Claimsthathumrfollowacollectivistframeworkbut,languageofCharterreferstohumrenjoyed by “every citizen of Canada,” “everyone,” “every individual”, etc. (individual property basis of humr still present) • Elitist and culturally-specific character of the court  formalized adversarial and impersonal legal system is unfamiliar to Aboriginal peoples • Some lawyers’ strategy = expose different world view of Aboriginal peoples • “Sensitivity to cultural difference is sensitivity to the limitation of the capacity to know” (25) • **Legitimacy of judging, without self-judgment, is simply infliction of dominant culture’s power • **Denial of difference = political tool of cultural hegemony o “…the legalization and entrenchment of politics in a particularly hegemonic way” (25) o Rights paradigm = “insensitive to its own particular cultural self-image” (26) o “…as long as law writing is culturally monopolized, there will always be an ‘absence of law to the contrary’” (27)  regarding statement by Justice MacGuigan in Federal Court of Appeal, Boyer v. Canada • Aboriginal peoples have few choices other than rights claims under the Charter SOME AREAS OF DIFFERENCE Rights paradigm is antithetical to widely-shared understanding of creation and stewardship responsibilities of Aboriginal peoples for the land No Aboriginal narratives about protecting individual interest in property; no equivalent of “rights”; no equivalent to private spheres of social life 31 Aboriginal cultures = oral **Cultural differences = differences between ways of knowing, describing, or understanding **Cultural differences = differences among even the “other” cultures Ethnographic/anthropological method = objectifying; describing the “other” Conceptualization of Aboriginal culture (by dominant group) has always been in terms of European/Christian legal and moral categories No real advances in “rights” for Aboriginal peoples in America since 16 C.? Differences seen as something to be repressed/transformed since colonialization “Aboriginal peoples have not been viewed by the dominant as peoples whose way of life should be tolerate or respected except in the most paternalistic and oppressive terms” (33)  why? • Racism • Benefits to assertion of gov’t power • Economic dominance through control of land & resources • **Aboriginal cultures presumed to be primitive, premodern, or inferior  ethnocentric predisposition (i.e. one culture is the measure of all others) CDN context  Aboriginal peoples and non-Aboriginal persons acknowledge one another; but, at the expense of Aboriginal peoples Treaties… • European  legalistic, written documents • Aboriginal peoples  sacred & represented; i.e. two-row wampum belt or oral histories • Why treaties are not viewed as agreements between two sovereign peoples? 1. Aboriginal peoples were not sufficiently “civilized”; not considered “sovereign” 2. Aboriginalpeoples “hadalready ‘lost’ theirsovereigntythrough some predestined and mysterious process such as the good providence of being ‘discovered’” (36) 32 • Treaties as paternalistic contracts Self-determination vs. self-government for Aboriginal peoples • Self-determination = in keeping w/ cultural difference  more hopeful concept; still has European roots o “…concept which provides greater recognition of the cultural differences of people who live within enclaves defined by dominant cultures rather than simply providing a predetermined context for minority or ‘ethnic’ rights” (38) • Self-government = implies that they can now take on some responsibility for their own affairs  contrary to their aims and cultural systems Turpel – “…dominant culture has never recognized Aboriginal peoples as distinct peoples and cultures” (39) Alternatives/moving forward… • Constitutional scholars & humr supporters should recognize implications of Aboriginal cultural difference • Recognize implications of rights-based claims for Aboriginal peoples • Challenges… o Internal challenge – member of the community could challenge Aboriginal laws on basis of individualrightsprotections inthe Charter arguingthat they have notbeen respectedby their gov’t o External challenge – non-Aboriginal person could challenge laws of an Aboriginal gov’t on basis that they do not conform w/ Charter standards • Internal disputes are brought before CDN courts  undermines Aboriginal styles of dispute resolution • “…loss of a cultural monopoly over the generation of law and its interpretation, a loss of universality” (45) • Deny cultural difference?  continued hegemony • Toleration of differences & recognition of autonomous communities? • “…question the cultural legitimacy and authority of the judiciary”(45) Aftermath of gender discrimination in the Indian Act 33 Human Rights Codes & the Charter “The Evolution of Human Rights in Canada”, Clément, Silver, Trottier • Title – “evolution”… o Kapur critiqued the linear progression of human rights o Ignatieff – flexibility of human rights • Inner rationality approach – more flexible terminology • Economic rights = gap in provision of statutory-based humr  resistance b/c they will cost the state money (guaranteed annual income might be an outgrowth of humr) • Post-war  anti-humr (i.e. rejecting Jewish and Japanese immigrants); now seen as very pro-humr • Self-congratulatory image of progressive humr stance  but this is very recent (also big humr violations in our history) • **Humr are under our civil law  but, started as quasi-criminal law o Different penalties (harsher for criminal law) o Some civil law public and private; criminal law exclusively public o Onus ▪ Civil = finding on a balance of probabilities; resolving conflicts/differences (i.e. filing a complaint) ▪ Criminal = proof beyond a reasonable doubt  consequences are more significant; stigma (i.e. guilt/charging) o **Tendency to transport notion of presumption of innocence into human rights cases (not relevant in civil law) o **Humr intended to be based on notion of responsibility (not attributing blame/guilt) • Humr laws result of lobbying by organizations • Sex discrimination late in its recognition as grounds of discrimination (1960) • Race discrimination (1940s) • First interest of humr = fairness (versus equality?) • Early days of resistance  arguments against state acknowledging humr and prohibiting discrimination o Argument = we don’t have a problem; there is not discrimination o Argument = can’t legislate morality; ineffective and inappropriate way to address the –isms (i.e. legislation vs. education) 1 Human rights 34 • Debate over each ground as it is introduced  e.g. latest ground = gender identity/expression • Sexual orientation – Vriend v. Alberta [1998] o Teacher fired b/c he was gay o Grounds are closed  i.e. they are listed; must fit within them o Lawyers brought a Charter challenge (against gov’t) to Alberta Human Rights Legislation o Breaching Charter rights to equality b/c Charter grounds are an open list o Analogous grounds = although ground is not listed, it is analogous to one that is listed o SCC found sexual orientation to be analogous grounds o Humr rights not allow for analogous grounds o SCCorderedAlbertagov’ttointerprettheirhumrlegislationasifitincludedsexualorientation o Debated whether to use notwithstanding clause  province can go against Charter o 1998 – first time it was illegal to discriminate on basis of sexual orientation in Alberta • Role of social movements – things taken for granted as grounds for discrimination were fought for • The future of humr? • Prof  Uncritical acceptance of the process of humr? “Enforcing Human Rights in Ontario”, Cornish, Faraday, Pickel • **Humr legislation is quasi-constitutional  lil const.; does not have primacy over Charter but does have primacy over other pieces of legislation (powerful in theory) • Humr is remedial (i.e. identify and get rid of discrimination)  not about fault/punishment • How to deal with accountability/responsibility? o We like blame o Education  how effective? • Goals of humr legislation… o Reduce/eliminate discrimination o Provide appropriate remedies for those who are victims of discrimination o Build a humr culture • **No definition of discrimination in our humr legislation o Reason not to define  too confining? o Definitions through case law o P. 58 quote – discrimination definition 2“…discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or 35 ▪ Humr law does not care about intentionality ▪ Criticism = focus on individual characteristics rather than power dynamics • Subcategories of discrimination… o Debates whether these categories are helpful/useful 1. Direct discrimination – discrimination that is explicit (e.g. we don’t hire women) 2. Constructivediscrimination–disparateimpactoradverseeffects;initsapplicationwhereyou realize it’sdiscriminatory (e.g. heightand weightrequirementsfor police;effectively excluded women and certain racial groups) 3. Systemic discrimination – results from simple operation of established procedures, none of which is necessarily designed to promote discrimination; reinforced by exclusion of disadvantaged group; fosters belief that exclusion is the result of natural forces; often unintentional (Justice Rosalie Abella’s definition; still used) • Action Travail des Femmes v. Canadian National Railway Co. [1987] – sex discrimination o Re: unskilled jobs at the CN (e.g. porters) o Women were 6.11% of CN work force  less than 0.5% of those were in senior management; 0.7% were unskilled o Canada – 40.7% of paid labor force was women  13% of those were blue collar (unskilled) o Example of systemic discrimination  nothing done after reports; direct discrimination? o Complaint went to SCC  decided there was systemic sex discrimination; future: 1 out of every 4 hours into unskilled positions had to be a woman, until they reached a specified percentage of women (13%; doesn’t push the boundary; chicken🐔percentage) o Hostile work environment b/c of order o **Positive decision  but, implementation can be ineffective; doesn’t necessarily lead to good change rd o Case was brought by feminist organization, Action Travail des Femmes  outside 3 party; not women that applied to CN and were turned away rd • 3 party bringing human rights complaints… o Disadvantages… ▪ Wouldn’t have first-hand knowledge rd ▪ If 3 party has their own agenda/objectives 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. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.” 36 o Advantages… ▪ Women on the inside cannot get fired  being dealt with outside of their sphere of work • Reprisal complaint – experiencing worse conditions b/c of the complaint • **Ontario Humr Code – changed significantly in 2006 o All systems are complaint-driven  reactive o Previously… ▪ Screening complaints – complaints went through the commission ▪ Very few cases were actually sent to the tribunal ▪ At tribunal, commission brought the case; commission acts for individual ▪ Critique = commission did everything; conflicts of interest; commissioners appointed by gov’t; not an easily accessible process; heavy focus on mediation/settlement (coercion?); slow process o Now… ▪ Direct access system – only basic screening ▪ Cases go straight into litigation process ▪ Commission separate from tribunal process ▪ Process changed; fundamentals of legislation did not change (i.e. grounds) o Areas in which discrimination is prohibited (context)… ▪ Services, goods, & facilities (exemptions: special interest service organizations) • Religion (exemptions: separate schools; refuse gay marriage b/c of Code) • Recreation clubs & insurance can charge fees based on fees/age/etc. ▪ Accommodation (exemptions: boarders in your own home) • Cannot refuse because someone is on welfare (only area where welfare is a prohibited ground for discrimination) • Employment (only area in which criminal record is a prohibited ground of discrimination) • Exception  bona fide occupational requirement/qualification • Righttobe freefromharassment: (employment& accommodation) – course of comment/action that is known, or ought reasonably to be known, to be unwelcome; onus on the person being harassed o Grounds on which discrimination can occur (closed list)… 37 ▪ Race ▪ Sex ▪ Ancestry ▪ Sexual orientation ▪ Place of origin ▪ Gender ▪ Color identity/expression ▪ Ethnic origin ▪ Family status ▪ Citizenship ▪ Disability o Affirmative action programs not considered discriminatory; explicitly protected o Claim has to be proven on a balance of probabilities o Prima facie – discriminatory on its face; if you accept everything the complainant has said, there will be a finding of discrimination  onus shifts to respondent o Onus shifts back and forth • Duty to accommodate up to the point of undue hardship o Ontario (Human Rights Commission) v. Simpsons-Sears Ltd. [1985] ▪ O’Malley = worker; Seventh-day Adventist ▪ Worker wanted Saturdays off to respect her Sabbath ▪ Simpsons-Sears didn’t care about her religion  discriminatory whether they intended it or not • British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Service Employees’ Union [1999) – aka. Meiorin o Meiorin was employed as a firefighter o 3 years after being hired, gov’t adopted series of fitness tests o She failed one test and was fired o Aerobic capacity was based on testing of males  no evidence that this aerobic capacity was actually a requirement to do the job o Systemic discrimination based on sex o Meiorin was successful  court held that it was not a bona fide occupational requirement o Court did not say they had a duty to accommodate women with a lesser aerobic capacity o Not accommodating norms, but challenging the gender norms Grounds in Life and in Law: Race “Connecting Grounds of Discrimination to Real People’s Real Experiences,” Dianne Pothier • Difficulty of intersectionality in humr context  grounds are not mutually exclusive 38 • The role (and limitations) of grounds  should they be retained as basis for discrimination? o De-centering grounds – concern that grounds are a mechanism that creates distance b/w actual experience of discrimination and the legal framework of it o Pothier doesn’t agree on de-centering  should expand our understanding and work with them as more complex matters • What is discrimination? How to we identify it? • History and social context are critically important to understanding of discrimination (as per Razack & Young) • Grounds = indirect way to define discrimination; negative or derogatory treatment based on membership in a specific group • Pothier – grounds provide historical/social context that fosters negative treatment • Leroux would focus on groups & impacts (more flexible?), rather than grounds • Pothier – challenging norms is at the core of equality analysis; assumptions reflect norms o Largely invisible to those who have those assumptions or fit those norms o Challenge norms = challenge hierarchy, dominance, privilege o Grounds = entry point into rethinking norms “Race, Racism and Racialization: Contested Concepts,” Vic Satzewich • Race is not static  always in transition • Should we continue to use these words? o Trying to come up with new terms might be just as problematic o “Racialization”  avoid implication of race as a real thing? • Minow’s dilemma of difference – acknowledging racism gives credence to the concept of race; rejecting it undermines the significance/impact of racism • Asymmetry – marginalized groups should have rights to have separate spaces that would be discriminatory if in the hands of the dominant group  substantive vs. formal equality • Democratic racism – uniquely CDN; tends to support the status quo; support multiculturalism in theory, but still racist in practice o Those who critique affirmative action are racist? Supporting multiculturalism is racist? Critiquing asymmetry is racist? – Henry et al. o Satzewich disagrees “The Easiest Way to Get Rid of Racism? Just Redefine It,” Greg Howard 39 • “Whiteness” is an ascription • Why we seem to find it hard to call something/someone as racist? • Racism is individualized Hill v. Air Canada (No. 2) [2003] • Employment discrimination case on the ground of race • (1) promotion; (2) environment • Good evidence = if complainant is more qualified than the person who got the job • “Clean hands” doctrine  tort, NOT humr • How does work performance relate to his treatment/discrimination in the workplace? • Intent is irrelevant • Systemic discrimination will always have an effect on individuals • Bought into employer’s version of the story • Related to Donna Young’s assumption Tanisma v. Montreal [2013] • Job for which you had to have managerial experience  complainant did not have managerial experience • No one met the requirements  other people were chosen first • Colleagues had the sameexperience and background and were given the position thathe did not have the opportunity for • Bona fide occupational requirement  reasonable to ask for managerial experience for a managerial position • Individual who lost the opportunity to compete (i.e. this case) vs. criteria themselves • Didn’t find intentional discrimination  intent is an aggravating factor when thinking about compensation • Stacy Vaughn case Abbott v. Toronto Police Services Board [2009] • Tribunal – she was discriminated against on the basis of race and gender • Intersectional case  didn’t try to disaggregate them Islam v. Big Inc. (No. 2) [2014] 40 • Bona fide occupational requ
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