What Makes Unequal Treatment Wrong? Can Philosophy Help Us Decide?

By Sophia Reibetanz Moreau

Prof. Sophia Reibetanz MoreauMost of us believe that governments, along with Crown agencies and corporations, have a duty to treat citizens equally, at least in certain respects. This belief is reflected in both s.15 of the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act. We also agree that individual citizens stand under duties of equal treatment when they enter the public realm of providing goods and services, or accommodation, or employment; and this is reflected in our provincial human rights codes. But our agreement masks a deep uncertainty over the purpose and extent of these duties. What types of unequal treatment are wrong, and why? Are they always wrong for the same reason? Or can cases of discrimination involve a number of quite different wrongs?

It may seem that, whatever we want to say with respect to these questions, philosophical analysis can be of little help in articulating it. Most contemporary philosophical debates on equality focus on the question of which general principles for resource distribution should guide legislatures; and this is not the question faced by the rights claimant who is trying to explain why she has been wronged, or the court that is hearing her claim. Furthermore, philosophical discussions tend to focus on goods that can be privately owned, such as income and real property. But victims of discrimination are more often concerned with equal access to things 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 to the freedom to present one's relationship in public as involving the most extensive kind of commitment that our society recognizes.

But even if philosophical discussions of equality are not helpful in understanding equality rights, philosophical methods of analysis may be. One method often employed in philosophy is to take an idea and try to break it down into its different conceptual parts, with the aim of then examining which of these conceptual parts is logically related to which others, how they are related, and what each of them entails. We can fruitfully do this with the idea of equal treatment.

Probably the most common substantive understanding of equal treatment in our jurisprudence is as treatment that is free from prejudice and stereotyping. Unequal treatment wrongs individuals, on this view, because it denies them benefits on the basis of reasons that do not really apply to themselves, and also because it publicly defines them using an image that is not their own, but that of another group (and usually demeaning). A different but related understanding of equal treatment is as treatment that does not permit one individual or group to retain an unacceptable amount or kind of political or social power. On this view, the wrong of unequal treatment is that it subjects individuals to a form of oppression. Both of these views of equality can be seen at work in the early Charter case of Vriend v. Alberta [1998] 1 S.C.R. 493, involving the Alberta government's failure to protect against discrimination on the basis of sexual orientation. A third view of what equality demands and why it matters can be seen in one of the complaints made by the claimant in Gosselin v. Quebec (A.G.), [2002] 4 S.C.R. 429.

Part of Louise Gosselin's objection to the social assistance scheme in this case was that it did not provide her with enough to live on: in other words, it denied her access to certain basic goods. So understood, the wrong of unequal treatment is that it denies an individual something that is basic to her well-being. Fourthly and finally, equal treatment is sometimes identified with equal consideration for each individual's feelings of self-worth; and correspondingly, the wrong of unequal treatment is seen as injury to a person's self-respect.

Each of the above conceptions requires much more exploration and delineation. But we can already note one arresting implication. Not all of these conceptions imply that what matters about equality is the individual's position relative to others. For instance, if what we value about equal treatment is freedom from stereotyping and prejudice, we can assess whether this has been achieved without recourse to any comparator group. The same is true of access to basic goods. This means that, contrary to our current jurisprudence, it may not be necessary to establish a comparator group in all cases. Furthermore, even where a comparator group is appropriate, this group may not be the same as the group that received the benefit. If, for example, we are concerned with unequal treatment in the specific sense of denial of a benefit in a manner that perpetuates oppressive power relations, the relevant comparator group will be the group that wields the power in question, and this may or may not be the same as the group that was not denied the benefit.

There clearly remains much further work to do on the issue of why equality matters and how we should understand equality rights. Our political and judicial debates on this question would benefit from greater conceptual clarification. So, although none of us wants to defer to a "bevy of Platonic guardians," we should certainly consider using some of their conceptual methods ourselves.

This article was first published in the Spring 2005 issue of Nexus.