Discrimination’s Definition
According to the Code, everyone has the right to be treated equally and without regard for their family status. Anti-discrimination legislation is intended to prevent violations of human dignity and freedom caused by the imposition of disadvantage, stereotyping, or political or social prejudice. Differential treatment based on family status is frequently clearly discriminatory. However, in some instances, it may be necessary to consider whether the treatment constitutes “discrimination” as defined by human rights law. Not all distinctions are discriminatory.
Discrimination based on family status can be defined and identified in a variety of ways. Discrimination on the basis of family status encompasses any distinction, including exclusion, restriction, or preference, that impairs the recognition of human rights and fundamental freedoms.
According to the Supreme Court of Canada’s decision in Andrews v. Law Society of British Columbia[22], discrimination on the basis of family status can be defined as any distinction, conduct, or action, whether intentional or not, that is motivated by a person’s family status and has the effect of either imposing burdens on an individual or group that are not imposed on others, or withholding or liaising benefits from an individual or group.
In determining whether discrimination has occurred in the context of equality claims brought under section 15 of the Canadian Charter of Rights and Freedoms (the “Charter”), the Supreme Court of Canada has offered the following three inquiries[23]:
Treatment Distinctions
Was there substantive disparate treatment, either as a result of a distinction, exclusion, or preference, or as a result of a failure to consider the individual’s already precarious position within Canadian society?
Finally, does the differential treatment constitute discrimination by imposing a burden on or depriving an individual of a benefity? Is differential treatment discrimination if it creates distinctions that are inimical to human dignity?
Discriminatory Attitudes, Stereotypes, and Biases
Discrimination manifests itself in a variety of ways. Discrimination can be direct and intentional in some cases, when an individual or organization treats an individual unequally or differently based on their family status.
For instance, a landlord decides not to rent apartments to families with small children and thus designates her building as “adults-only.”
This type of intentional discrimination is frequently motivated by negative attitudes and biases toward family status.
Attitudes toward caregiving and caregivers are deeply ingrained in our society, and disparaging remarks or assumptions about caregivers are frequently not viewed as a serious human rights violation. Human rights require that individuals be judged on the basis of their unique characteristics, abilities, and capacities, rather than on the basis of stereotypes and assumptions about the groups to which they belong. Negative attitudes and stereotypes can result in harassment and discrimination, impairing an individual’s ability to access services, employment, and housing. Individual evaluation counteracts the effects of negative attitudes and stereotypes based on Code-related factors such as family status.
Given that caring for others is generally regarded as a positive trait, it may seem counterintuitive that family status could be a source of negative attitudes and stereotypes. However, attitudes and stereotypes about family status can manifest in a variety of ways.
Individuals who provide care or are perceived to provide care may be assumed to be less competent, committed, intelligent, or ambitious than others. Frequently, this is influenced by gender stereotypes. For example, when female employees become parents or assume other significant caregiving responsibilities, they may be relegated to the “mommy track” and overlooked for promotions, learning opportunities, and recognition as a result of conscious or unconscious biases about the characteristics of mothers[24]. On the other hand, men who assume significant caregiving responsibilities may be perceived as less “manly” as a result of their refusal to conform to stereotypical gender roles.
Additionally, there are assumptions and stereotypes about who should and should not provide care. Stereotypes about people with disabilities or people who identify as LGBT may imply that these individuals lack the capacity to parent well and therefore should not be responsible for children. Additionally, it may be assumed that LGBT individuals lack “real” families and caregiver responsibilities, when in fact, stereotypical notions of family effectively render these families and caregiver needs “invisible.” Additionally, stereotypes exist regarding the parenting abilities of members of various racialized groups, as well as the responsibilities and capabilities of single parents and young parents.
The treatment of individuals classified according to their family status may also be influenced by attitudes toward various family forms. Disapproval of lone parent families, foster families, families with a large number of children, or families headed by LGBT individuals, for example, may result in negative treatment and discrimination. Adoptive families may be treated as less “real” or valid than biological families.
Additionally, access to services and housing for individuals identified by their family status may be hampered by negative attitudes toward children, such as the belief that they are noisy, disruptive, and have a lesser right to public spaces or housing than adults.
Inconspicuous Discrimination
Discrimination can take on more subtle or covert forms in some instances. Intent or motivation to discriminate is not required for a finding of discrimination; merely that the conduct has a discriminatory effect suffices.
Discrimination on the basis of a Code provision need only be one of several factors influencing a decision or treatment.
Subtle forms of discrimination are typically detectable only after an examination of all relevant circumstances. While individual acts may be ambiguous or easily explained away, when viewed in context, they may imply that discrimination based on family status played a role in the treatment received by a person.
When a woman returns to work following the birth of her first child, she notices that her career, which had appeared to be ‘on the fast track,’ has seemingly stalled. She is assigned to manage smaller, less critical projects and is passed over for several training opportunities. When she inquires about a promotion, her manager attempts to discourage her by stating that the position requires’super-dedication’ and ‘killer hours.
It can be difficult to determine whether such situations involve subtle discrimination. They may thus necessitate investigation and analysis of the context, including the presence of comparative evidence contrasting how others were treated or evidence of a pattern of behavior. It is not necessary for the parties’ interactions to include language or comments about family status to establish that discrimination on the basis of family status occurred. However, when such comments are made, they can serve as additional evidence that an individual’s family status influenced their treatment.
Sexual Harassment
According to Section 5(2) of the Code, all employees have a right to be free from workplace harassment by their employer, employer’s agent, or another employee on the basis of, among other things, family status. This right to be free of harassment applies not only to the workplace but also to the “extended workplace,” which includes events that take place outside of the physical workplace or regular work hours but have implications for the workplace, such as business trips, company parties, or other company-related functions.
According to Section 2(2) of the Code, anyone who occupies housing has a right to be free from harassment by the landlord or an agent of the landlord, or by another occupant of the same building, on the basis of, among other things, family status.
The Code makes no explicit reference to harassment in the areas of services, goods, and facilities (section 1), contracts (section 3), or membership in trade and vocational associations (section 6 of the Code). However, the Commission believes that harassment based on family status would violate sections 1, 3 and 6 of the Code, which guarantee equal treatment without discrimination in the provision of services, goods and facilities, contracts, and membership in trade and vocational associations, respectively.
Harassment is defined in Section 10(1) of the Code as “engaging in a pattern of vexatious comment or conduct that is known or should reasonably be known to be unwelcome.” The phrase “that is known or ought reasonably to be known to be unwelcome” establishes both a subjective and an objective standard for harassment.