The Wrongs of Unequal Treatment

The Wrongs of Unequal Treatment

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Over the past twenty years, analytic philosophers in the United States and England have devoted extensive thought to the different reasons we have for valuing equality- and, relatedly, to the different ways in which we can conceptualize the wrong or wrongs done to individuals when the state does not treat them as equals. However, neither Canadian legal academics nor Canadian courts have made extensive use of this literature in interpreting the equality provisions of the Canadian Charter of Rights and Freedoms. There are a number of good reasons why one might expect this philosophical literature to remain somewhat remote from Canadian legal debates. One reason is that philosophers have tended to approach the question of what kind of equality matters as an inquiry into which system of general principles for the distribution of resources should guide legislatures in the design of particular policies. Since a court cannot unproblematically assume that it is either institutionally competent to make judgments about the most appropriate general distributive principles, or possessed of the institutional mandate to do so, these philosophical discussions can seem of little relevance to a court's task of interpreting constitutionalized equality rights. Furthermore, philosophers have tended to focus on the distribution of goods that can be privately owned, such as income and real property. Although this is usually done only for ease of illustration, the result has been that their work often lacks explicit discussion of claims for the equal availability of goods that are not privately appropriable—for instance, access to public spaces that have been designed in such a way that everyone can move easily through them, or the freedom to present one's relationship in public as involving the most extensive kind of commitment that our society recognizes. Yet it is very often these sorts of goods that claimants in equality rights cases have been denied. Finally, and most importantly, philosophical discussions have tended to assume—either implicitly or, as in the case of Ronald Dworkin, quite explicitly—that questions concerning the just distribution of resources can be pursued without broaching questions about the just distribution of political and social power. Consequently, prior to the work of Elizabeth Anderson, and more recently, Samuel Scheffler, most philosophers did not concern themselves directly with inequalities in the distribution of political or social power, or with how to conceptualize the wrong that is done by institutional structures and policies that stigmatize individuals, marginalize them, or perpetuate their domination by others. The latter question is of course of particular relevance to Canadian equality jurisprudence, given that the Supreme Court of Canada has construed the protection offered by section 15 of the Charter as limited to those forms of unequal treatment that involve “discrimination.” Indeed, for this reason, it might be thought that any more general discussion of inequality could have only limited relevance, if any, to Canadian equality jurisprudence. However, if we are to define discrimination broadly enough to include not only intentional discrimination but also what has come to be called “adverse effects discrimination”—that is, discrimination that merits the name not because some have deliberately been denied a benefit out of malice or prejudice but because, under the circumstances, even the unintended effect of depriving these people of this particular benefit is unfair to them—then it seems we must understand discrimination, quite generally, as “depriving some of a benefit available to others, in circumstances where this treatment is unfair to them.” But, of course, this is just the most general characterization that philosophers defending some form of equality would give of the kind of unequal treatment that they hold to be objectionable. No plausible theory of equality maintains that what is objectionable about unequal treatment is the mere fact that some individuals end up with more or less than others. Rather, such theories hold that unequal treatment is objectionable when, and to the extent that, this treatment is unfair. Hence, the real question for philosophers writing on equality has been, when unequal treatment is unfair, what makes it so? Or, as we might otherwise put it, what is the nature of the wrong or wrongs done to individuals when they are unfairly treated unequally? This is precisely the question that courts and legal academics face, in interpreting the equality rights contained in section. As I hope this paper will show, the philosophical literature on equality can help us answer this question, in spite of the differences in focus and context noted above. We can learn, in particular, from some of the conceptual distinctions that have been drawn in the philosophical literature between various ways of understanding the wrong that is done to individuals when the state unfairly treats them unequally. I shall begin by separating out one abstract conception of this wrong and four more specific, substantive conceptions of the wrong, and I shall suggest that all of them can be found in Canadian equality jurisprudence. As my discussion will suggest, these different conceptions of the wrong are not reducible to a single, unifying explanation; that is, there is no one factor that all of them can be understood as invoking as the source of the wrong. Assuming that all of them are plausible conceptions of the wrong, it follows that there is no single type of wrong present in all cases of unfairly unequal treatment. There is, rather, a variety of wrongs, each irreducible to the others. But a given case may involve more than one of these wrongs. With this theoretical basis in place, I shall turn to consideration of the test laid down by the Supreme Court in Law v. Canada for violations of section 15(1).10 I shall argue that, at least in its current form, this test fails to separate out these different conceptions of the wrong, and that this has rendered it both conceptually problematic and less able to recognize as discriminatory certain instances in which the claimant has indeed suffered one or more of the wrongs I have discussed. In conclusion, I shall explore several ways in which Law nevertheless leaves us room to maneuver in seeking a new approach to section 15, one that would acknowledge the distinctness of the various ways in which unequal treatment can wrong individuals, and would therefore place courts in a better position both to identify these wrongs and to decide whether section 15 is indeed rightly construed as offering protection against all of them.

Source Publication

Making Equality Rights Real: Securing Substantive Equality Under the Charter

Source Editors/Authors

Fay Faraday, Margaret Denike, M. Kate Stephenson

Publication Date

2006

The Wrongs of Unequal Treatment

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