An edited version of this article first appeared in the October, 1995 issue of Canadian Lawyer. If you wish to reproduce this article, click here for copyright info.
Last month (The Ramp to Hell ) I wrote about the case of a London, Ontario chiropractor who was forced by the Human Rights Commission to install a $20,000 ramp at his clinic. The order was made after a wheelchair-bound woman complained that she could not get into the building to employ the doctor's services. She rejected his offer to treat her at home or at another accessible location, insisting that those alternatives would make her feel stigmatized and undignified.
The business and professional community in London--and indeed, all of Ontario--must be shaking in their boots. Every doctor, dentist, accountant, lawyer, restaurateur or merchant whose business premises are inaccessible to wheelchairs has to pray that this woman never decides to patronize his establishment, lest it cost him $20,000 for the favour.
Ontario's Human Rights Code divides the population into two classes who are given completely different treatment. The first group can be broadly described as consumers. They can't be discriminated against on the grounds of race, sex, handicap, etc., by anyone providing services, goods, facilities or accommodation. If they think they have been discriminated against, they can complain to the Human Rights Commission.
The second group can be broadly described as business people. They are the ones who provide the services, goods, facilities and accommodations, in exchange for money. The first group can freely discriminate against the second on every imaginable ground, because there is nothing in the Code that forbids discrimination in the provision of money.
So if a person in a wheelchair chooses to eat at an English-style pub rather than at the French, Jewish or Chinese restaurants (all ramped) in the same block, the snubbed restaurateurs can't go bleating to the Human Rights Commission about her cruel ethnic discrimination. Nor can any of the ethnic restaurateurs claim "systemic discrimination" if his restaurant fails while those of his neighbours succeed. The Human Rights Commission won't force the locals in the neighbourhood to eat their "fair share" of Chinese food. Business people simply have to live with the fact that in a market economy, consumers are free to deal with whomever they choose.
Here's another example. Clients occasionally tell me they picked my name out of the yellow pages because they wanted a female lawyer. Presumably, there are other people who choose not to hire me for the same reason. Ontario's benchers endorsed this discriminatory practice last year by allowing the Lawyer Referral Service to fill gender-specific requests. A Law Society Committee was even asked to consider permitting clients to request a referral by race or ethnicity. But the Rules of Professional Conduct make it clear that lawyers cannot screen out clients on the basis of sex, race or ethnicity.
Why should there be any such dichotomy? Every commercial transaction consists of two parties making an exchange: goods, services, facilities or accommodation flow in one direction, and money flows in the other. Both parties to the transaction must feel that what they are getting is more valuable to them than what they are giving up; otherwise, they wouldn't agree to the deal. So why should one group be free to select the identity of the person they wish to profit from, while the other isn't?
Don't get me wrong--I am certainly not advocating that the Human Rights Code should apply in both directions. On the contrary, I am suggesting that it should be scrapped, so that freedom of contract can prevail for all.
The only way to make sense of the dichotomy is to realize that the Code is not about protecting minorities against racism, sexism or other -isms at all. No, what it's really about is subjugating those classes of people who are presumed to be powerful to those who are presumed to be powerless. Business people and landlords of all races, sexes and abilities are the targets; consumers and tenants are the beneficiaries.
Of course, the presumptions about power are not particularly accurate. There are many consumers and tenants who are wealthier and more influential than business people and landlords. But little facts like this never bother those who want to dismantle the free-market system
The chiropractor decision contains the unspoken declaration that the doctor has some sort of obligation to provide services to the disabled woman, even though she is under no corresponding obligation to purchase his services. Interestingly, he has no general obligation to provide chiropractic services to the world. He can retire from practice and take his services off the market entirely if he chooses. But if he has no obligation to provide his services to anyone at all, then how can he have an obligation to provide services to the disabled woman in particular?
What the Human Rights Code actually does is to impose a form of involuntary servitude on certain members of society--the goods and service providers. It transforms others--consumers who belong to one of the privileged minority groups--into overlords. The latter have the right to force the former to perform services for them against their will. There was a time when this was called "slavery," but it's unfashionable to call a slave a slave these days.
to the preamble of the Ontario Human Rights Code, its purpose is to create
"a climate of understanding and mutual respect." What it is bound
to create instead is a climate of privilege and resentment.
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