An intersectional approach to discrimination: Addressing multiple grounds in human rights claims

We will never address the problem of discrimination completely, or ferret it out in all its forms, if we continue to focus on abstract categories and generalizations rather than specific effects.  By looking at the grounds for the distinction instead of at the impact of the distinction…we risk undertaking an analysis that is distanced and desensitized from real people’s real experiences….  More often than not, disadvantage arises from the way in which society treats particular individuals, rather than from any characteristic inherent in those individuals.^[1]

In Canada, as the understanding of human rights evolves, the focus is increasingly on a contextualized approach to discrimination.  A contextualized approach places less emphasis on characteristics of the individual and more on society’s response to the person.  It also takes into account historical disadvantage experienced by the group the person belongs to.  One recent and striking example of this phenomenon is seen in the Mercier^[2] decision, in which the Supreme Court of Canada indicated that the determination of what constitutes a disability should be based on whether the person has experienced “social handicapping” rather than focusing on bio-medical conditions or limitations.  The Ontario Human Rights Commission’s (the “Commission”) recent policy and research initiatives have similarly shown a move towards an analysis of discrimination that takes into account the lived realities of individuals and the social context of discrimination.^[3]  On the compliance side of the Commission’s mandate, the Ontario board of inquiry’s decision in Kearney v. Bramalea Ltd. (No. 2)^[4] demonstrates the successful use of such an analysis and has, therefore, been lauded as a very important case for equality rights in Canada.

The objective of this paper is to build on the work that the Commission has already done to recognize the complexity of how people experience discrimination.  It describes a framework for a contextualized approach to analyzing discrimination in multiple grounds complaints.  This contextualized approach is termed “an intersectional approach to discrimination”^[5].  The paper outlines the importance of exploring how an intersectional approach might be consistently applied in all areas of the Commission’s work.  In doing so, the paper reviews equality and human rights jurisprudence, emerging academic research and commentary on multiple and intersecting grounds of analysis and information about how the Commission currently handles multiple grounds complaints. 

This paper is a starting point in a process that will involve all areas of the Commission as well as outside expertise.  It is designed to stimulate discussion about how the Commission can more formally operationalize an intersectional approach to discrimination in all areas of its work including policy development, compliance and litigation of complaints.  It is hoped that through broad consultation, the Commission will be able to more fully realize a contextual approach to discrimination for human rights complaints that involve multiple and intersecting grounds.