A human rights complaint or an equality rights case that cites multiple grounds of discrimination can be approached in one of several different ways. Depending on the approach that is selected, the analysis of the claim will differ and it is likely that the outcome will also be affected.
In most instances, an intersectional approach to a multiple grounds complaint is the preferred one. The concept of ‘intersectionality’ has been defined as “intersectional oppression [that] arises out of the combination of various oppressions which, together, produce something unique and distinct from any one form of discrimination standing alone....”[6] An intersectional approach takes into account the historical, social and political context and recognizes the unique experience of the individual based on the intersection of all relevant grounds. [7] This approach allows the particular experience of discrimination, based on the confluence of grounds involved, to be acknowledged and remedied.
Several examples help to illustrate the unique experience of discrimination based on historical, political and social contexts and the intersection of grounds:
- In many cases, racial minority women experience discrimination in a completely different way than racial minority men or even women as a gender. Similarly, racial minority men may experience discrimination that would not be faced by non-minority males or even women of the same background. This is because groups often experience distinctive forms of stereotyping or barriers based on a combination of race and gender. An intersectional approach recognizes this.
- A person who belongs to a particular religion may face religious discrimination only if they identify by another ground such as race, colour or ethnic origin or may experience discrimination differently from co-religionists based on the relationship with another ground. Gender can also be a factor that has an impact on religious discrimination.
- Women may be more likely to experience sexual harassment if they are more vulnerable by virtue of another aspect of their experience such as recent arrival in Canada.
- Persons with disabilities may experience particular barriers when they identify by other grounds. For example, during the Commission’s consultations on age discrimination, the Commission was told that for persons with disabilities, aging can result in a disproportionate impact or unique experiences of discrimination. Indeed, statistical evidence confirms the particular disadvantages faced by older persons with disabilities.[8] Similarly, research indicates that persons with disabilities and persons who are members of racialized groups are more likely to be unemployed or under-employed.[9] Therefore, members of racialized groups who have disabilities may be doubly disadvantaged. Aboriginal persons with disabilities face the same problems as other persons with disabilities but these are worsened by jurisdictional issues, namely the lack of disability-related services on reserves and the jurisdictional barriers to accessing services for those who live off reserves.[10] Evidence also indicates that women with disabilities experience additional disadvantage as a result of the intersection of disability with gender.[11]
- Discrimination on the basis of sexual orientation may be experienced differently by gay men and lesbians as a result of stereotypes around sexuality and relationships. Furthermore, the Commission’s Policy on HIV/AIDS-related Discrimination[12] recognizes that the erroneous perception of AIDS as a “gay disease” may have a disproportionate effect on gay men and may result in discrimination the basis of both sexual orientation and perceived disability.[13]
These are just a few examples of the complexity of the experience of discrimination when multiple grounds are involved. Many others have been identified in the Commission’s policy work and complaints. Additional examples can be found throughout this paper and will continue to emerge as the Commission builds on its understanding of intersectionality.
Applying an intersectional or contextualized approach to multiple grounds of discrimination has numerous advantages. It acknowledges the complexity of how people experience discrimination, recognizes that the experience of discrimination may be unique and takes into account the social and historical context of the group. It places the focus on society’s response to the individual as a result of the confluence of grounds and does not require the person to slot themselves into rigid compartments or categories. It addresses the fact that discrimination has evolved and tends to no longer be overt, but rather more subtle, multi-layered, systemic, environmental and institutionalized. Madame Justice L’Heureux-Dubé has summed up the benefits of this approach:
...categories of discrimination may overlap, and...individuals may suffer historical exclusion on the basis of both race and gender, age and physical handicap, or some other combination. The situation of individuals who confront multiple grounds of disadvantage is particularly complex. Categorizing such discrimination as primarily racially oriented, or primarily gender-oriented, misconceives the reality of discrimination as it is experienced by individuals.[14]
Although an intersectional analysis is relevant to any combination of grounds, it has particular implications for race or race-related cases. Thus, the importance of recognizing the intersectionality of multiple forms of discrimination was emphasized in the United Nations World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (“WCAR”), which was held in 2001 in South Africa.[15] Moreover, it can be a useful strategy to link grounds of discrimination to the social, economic, political and legal environment that contributes to discrimination. Conditions (such as underemployment/ unemployment, poverty, homelessness) that may not be directly covered by the Ontario Human Rights Code (the “Code”), but nevertheless lead to high levels of disadvantage for vulnerable populations, could be included as part of the contextual analysis. Finally, an intersectional analysis can also be used to include human rights protections provided for in international conventions in the ambit of the Code.
Many scholars and advocates have argued that human rights claims should recognize that individuals have multiple identities and that these identities shape their experience of discrimination. Within the Commission, there is a growing recognition that we can improve our understanding of the impact when grounds of discrimination intersect and that tools for applying an intersectional analysis will be very helpful in the handling of complaints, from inquiries through to litigation, and in our policy work. As little has been done by human rights agencies and courts in Canada, developing a framework for an intersectional analysis has the potential to be ground breaking.
[6]M. Eaton, “Patently Confused, Complex Inequality and Canada v. Mossop” (1994) 1 Rev. Cons. Stud. 203 at 229.
[7]C. A. Aylward, “Intersectionality: Crossing the Theoretical and Praxis Divide” (Paper Distributed at Transforming Women’s Future: Equality Rights in the New Century: A National Forum on Equality Rights presented by West Coast Leaf, 4 November 1999) [unpublished].
[8]See Time for Action: Advancing Human Rights for Older Ontarians, supra note 3.
[9]For example, In Unison: A Canadian Approach to Disability Issues: A Vision Paper (Federal/Provincial/Territorial Ministers Responsible for Social Services, 1998) notes, “persons with disabilities have a lower rate of employment as well as a lower participation rate in the labour force than those without disabilities” (at 36). Similarly, Canadian Race Relations Foundation, Unequal Access: A Canadian Profile of Racial Differences in Education, Employment and Income (Prepared for the Canadian Race Relations Foundation by the Canadian Council on Social Development, 2000) describes barriers to employment faced by racialized groups.
[10]In Unison: A Canadian Approach to Disability Issues: A Vision Paper, ibid. at 39.
[11]“The disproportionate share of domestic responsibilities assumed by women with disabilities has presented significant barriers to their labour force participation and has contributed to increased poverty for many of these women.” ibid. at 36. See also: D. Pothier, “Connecting Intersecting Grounds of Discrimination to Real People’s Real Experiences” (Paper Distributed at Transforming Women’s Future: Equality Rights in the New Century: A National Forum on Equality Rights presented by West Coast Leaf, 4 November 1999) [unpublished].
[12](January 2000), online: Ontario Human Rights Commission <http://www.ohrc.on.ca>.
[13]For example see Moffat v. Kinark Child and Family Services (No. 4) (1998), 35 C.H.R.R. D/205 (Ont. Bd. Inq.).
[14]Madam Justice L’Heureux-Dubé writing for the minority in Canada (A.G.) v. Mossop, [1993] 1 S.C.R. 554 at 645-646 [hereinafter Mossop].
[15]For example, in an opening address Mary Robinson, United Nations High Commissioner for Human Rights and Secretary-General of the World Conference against Racism, stated:
You are also, I know, aware of the intersectionality of multiple forms of discrimination – how gender intersects with race, how sexual orientation intersects with race, how poverty intersects with race. This is a dimension which is deservedly receiving particular attention at this Conference. [online: Office of the United Nations High Commissioner for Human Rights <http://www.unchr.ch> (date accessed: 27 September 2001)].