Employment law: Different treatment not necessarily discrimination
This article was originally published by The Hamilton Spectator.
It is quite common today to see job ads that indicate preference will be given to candidates from marginalized groups such as Indigenous peoples, ethnic minorities or 2SLGBTQ+ individuals. Some people, usually white people, grumble that that is discriminatory.
The Ontario Human Rights Code makes explicit exceptions to the code for special programs or hiring practices designed to relieve hardship or economic disadvantage to marginalized groups or assist them in achieving equity within our society. Some people believe equality is a simple thing. They think that by treating everyone the same and putting them on a level playing field, equality concerns are satisfied. Luckily, the Human Rights Code recognizes that our society has a history of serious systemic inequality that has created disadvantaged groups. Ignoring those historical and societal realities actually feeds and sustains the inequalities. It is not just about who gets a particular job or gets to enroll in a particular program. That is only the micro level. In the big picture, assisting and promoting marginalized groups promotes broader societal acceptance of those groups and individuals. British Columbia has a similarly worded Human Rights Code.
Nancy was a member of a writers’ union in the film industry. A workshop was offered for members. It was advertised as providing preferential admission to Indigenous, 2SLGBTQ+ and diverse members. Nancy claimed that as a heterosexual woman who was not visibly biracial, she suffered discrimination as a result. She argued the union was well aware of discrimination against all women in the filmmaking industry but still kept her out of the workshop.
The union argued that if special support was given to traditionally under-represented groups to tell their stories, they produce and write from their own perspective and in turn provide additional performing opportunities for all under-represented groups. It was trying to redress historical wrongs. Nancy took the matter all the way to the British Columbia Court of Appeal and lost at every turn. The admission requirements were an attempt to ameliorate historical disadvantages and were not discriminatory.
Admittedly, being excluded from a job opportunity or a support program can frustrate individuals. On its face, it might feel discriminatory. People are being excluded because they are not a member of a marginalized community. That feeling can change, however, if one truly tries to empathize with the experiences of the historically marginalized. Understanding that many members of our society have spent their lives feeling like an afterthought, a second-class citizen, can change one’s perspective. Realizing that individuals who come from generations of economically disadvantaged individuals who have suffered real life consequences in their prosperity and profound feelings of alienation because of their “otherness” can go a very long way.
The reality is, for centuries, if you were openly gay or clearly not white, only low-paying positions were available for work. It was never a rule. No one ever admitted it. It just was. If one is part of the group that does get the good job, one doesn’t think about it. You don’t see the discrimination. You don’t notice it. The fact that we are beginning to understand the harm these historical prejudices have inflicted upon human beings is a positive sign. Our attempts to proactively redress them should be applauded, not criticized.
Treating people differently does not always mean that discrimination has occurred. The one-standard-fits-all approach does not help us move forward toward a society that embraces true equality.
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