© 1998 Karen Selick
 The Human Rights Laws--Privileges for Some, Equality for None
An edited version of this article first appeared in the April 25, 1998 issue of The Globe and Mail.  If you wish to reproduce this article, click here for copyright info.


 The Human Rights Laws--Privileges for Some, Equality for None
Suppose a gay couple is apartment-hunting.  They find two comparable flats, at the same rent, in the same neighbourhood.   One is in a building owned and occupied by a heterosexual; the other is in a building owned and occupied by a homosexual.  They decide they’ll feel more comfortable renting from the gay landlord.  Should the straight landlord be able to charge them with discrimination on the basis of sexual orientation and force them to rent his apartment instead?

Suppose a member of a racial minority receives two job offers at the same salary and working conditions:  one from a member of his own race, and one from a white person.  If he accepts the job from the member of his own race because he thinks he’ll enjoy the camaraderie more at that firm, should the white employer be able to charge him with racial discrimination under human rights code and force him to work there instead?

Suppose a woman goes to a medical clinic for her annual physical, and finds out that her usual doctor, a woman, was called out on an emergency that day.  One of the other doctors, a man, offers to see her instead, but she refuses because she dislikes the thought of a man examining her.  Should the male doctor be able to charge her with discrimination on the basis of sex and force her to let him examine her?

It’s hard to imagine anyone answering "Yes" to any of these questions, but anyone who did would be disappointed to learn that Canada’s human rights laws do not even provide for discrimination complaints such as these to be made.  These statutes do not prohibit discrimination per se on the basis of sexual orientation, race, sex, or other grounds.  Rather, they prohibit people in certain categories from discriminating against people in certain other categories.  In other words, the statutes themselves operate in an unequal and discriminatory manner.

Employers are not allowed to discriminate against employees, but employees may freely discriminate amongst employers.  Landlords may not discriminate against tenants, but tenants can discriminate against landlords.  Providers of services cannot discriminate against customers, but consumers can discriminate against doctors,  stores, restaurants, churches, clubs or anyone else who provides a service.

Do the federal and provincial human rights codes guarantee equality for all Canadians?  Not at all.  They say that certain Canadians are entitled to freedom of choice and freedom of contract, while others are not.  The group that is discriminated against—employers, landlords, and service providers—can be forced into contracts against their will.  In fact, the provisions of these codes make a mockery of our traditional law of contract.  A contract is supposed to be a voluntary meeting of minds, not the imposition of one person’s will upon another.

How could the human rights laws be amended to eliminate this unequal treatment of different groups?  There would be two ways to go about it.  The first would be to make them apply in both directions.  Employees would be forbidden from discriminating against employers, tenants from discriminating against landlords, consumers from discriminating against service providers.  

Consider the implications.  Restaurant patrons would be forced to eat their "fair share" of Chinese food, Italian food, and Jewish food, whether they enjoyed it or not, or be guilty of discrimination.  Female- or minority-owned businesses would virtually be able to "draft" white male employees, who wouldn’t be able to refuse a job offer without worrying about a discrimination charge. 

The Human Rights Commission would become the economic dictator of the country.  It would decide who worked where and who bought what from whom.  Every human transaction would have to be filtered through the screen of this anti-discrimination law.  Freedom of contract would be a thing of the past.  We would have a complete command economy, as bad as anything that ever existed in the old Soviet Union, with the same economic paralysis, stagnation and inevitable decline.  The commission might as well change its name to "commissariat."

The second option would be to repeal the human rights laws entirely, allowing all Canadians the same freedom to negotiate and contract with whomever they choose.

The recent uproar over adding sexual orientation to Alberta’s human rights law missed the point entirely.  With or without sexual orientation, the human rights laws are not a guarantee of equality for all Canadians.  They are laws that grant privileges to some, at the expense of others.  This is the subject that should be under debate.

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January 18, 2001