Other approaches to multiple grounds

As discussed above, the intersectional approach is the preferred one for complaints and cases that cite multiple grounds. Nevertheless, there are other ways in which multiple grounds matters are being handled by human rights bodies, courts and international bodies such as the United Nations (the “UN”). In some instances, the grounds are looked at sequentially to see whether discrimination can be made out on the basis of each one in turn. In other cases, a strategic choice is usually made regarding where to place the evidentiary focus of the complaint and the other grounds are not considered at all.^[16] A decision to eliminate another ground might be as a result of the difficulty in proving it, or because the case law may not be as well established in that area. Either of these two approaches really puts an emphasis on a single ground.

In other cases, one ground is seen as compounding discrimination on the basis of another ground so as to increase the overall burden of inequality.^[17] For example, in a situation where all women experience discrimination and all persons with disabilities experience discrimination, women with disabilities will face compounded disadvantage. One example might be a physical test as a pre-condition for employment. If the test disproportionately screens out women and disproportionately impacts persons with disabilities, a woman with a disability will face an accumulated burden and therefore compounded discrimination. This approach differs from an intersectional approach because it simply adds one form of discrimination to the other without recognizing that in fact something unique is being produced. Furthermore, it does not incorporate a contextualized approach which examines society’s response to the person as a result of the combination of grounds.

A review of human rights decisions across Canada, cases under s. 15 of the Canadian Charter of Rights and Freedoms (the “Charter”), and even international instruments and complaints, reveals that at present the most common approach to discrimination claims is one that tends to focus on a single ground. Current models for human rights and equality claims apply overarching principles in proving and remedying discrimination that do not always take into consideration the unique circumstances of the individual or the social context of the discrimination.

The current approach has been shaped by several factors. Human rights legislation evolved to address overt expressions of discrimination in public spheres. The social, legal and political climate of the time shaped the way in which the legislation developed and was implemented. Another contributing factor was the historical development of human rights legislation and the interpretation given to human rights. Human rights legislation was based on the United Nations’ Universal Declaration of Human Rights, which emphasized civil and political rights at the expense of economic, social and cultural rights and did not explicitly recognize the possibility of the intersection of grounds. Some have argued that the current approach has been informed by dominant political ideologies and philosophies such as liberalism in which the ‘subject’ is treated as independent, unitary, coherent and fixed.^[18]

In the sections that follow, discrimination cases involving multiple grounds will be analyzed. Charter cases, human rights complaints and complaints under international instruments in which an intersectional approach was not followed will be discussed and an analysis of how the failure to do so led to problematic outcomes will be provided. By way of contrast and to illustrate how an intersectional approach can and should be applied, cases in which a more contextualized approach was used will be reviewed.

Human rights and "Charter" cases

Section 15 of the Charter guarantees the right to equality based on a list of ‘enumerated’ grounds, namely race, national or ethnic origin, colour, religion, sex, age and mental or physical disability. In addition, in appropriate cases, courts can recognize ‘analogous’ grounds of discrimination. With the exception of the Manitoba Human Rights Code, human rights statutes in Canada contain an enumerated list of grounds of discrimination with no power to recognize further grounds.

Some scholars have been critical of the focus on enumerated and analogous grounds in Charter and human rights cases for two primary reasons. The first relates to the fact that “a limited view of identity ensures that those persons who are unable to categorize or caricaturize themselves according to one of the enumerated categories find themselves “falling through the cracks” of Canadian equality and anti-discrimination law”.^[19] The second relates to situations in which there is sufficient evidence to find discrimination on the basis of one of the grounds, but to focus solely on that ground would do an injustice to the lived realities of those facing discrimination. In addition to failing to comprehend the complex nature the discrimination, the injustice can involve failing to fashion an appropriate remedy.

A frequently cited example of a case where the single ground approach has resulted in a discrimination claim being dismissed altogether is the majority decision of the Supreme Court of Canada in Mossop.^[20] The majority of the court has been criticized for preferring the least problematic categorization available, namely that Mr. Mossop’s claim of discrimination for being denied bereavement leave to attend the funeral of his same-sex partner’s father was a claim of discrimination on the basis of sexual orientation and not on the basis of family status.^[21] The majority decision was based on an assumption that the grounds of “family status” and “sexual orientation” were mutually exclusive. As the majority characterized the claim as based on sexual orientation, and due to the fact that at the time, sexual orientation was not a prohibited ground of discrimination in the Canadian Human Rights Act, Mr. Mossop’s claim failed despite the clear differential treatment he had experienced.

Other cases have ‘fallen through the cracks’ in the sense that discrimination has been found on one ground only, in a way that fails to comprehend the complexity of the claimant’s experience. One author surveyed race and sex discrimination cases reported in the Canadian Human Rights Reporter from 1980 to 1989 to see how Canadian human rights tribunals have responded to claims of discrimination brought by racial minority women.^[22] The first finding was that it was very difficult to find reference to racial minority women in the cases. The effect of this was that racial minority women and their unique experiences of discrimination seemed to ‘disappear’. Moreover, when cases involving racial minority claimants were found, there was no consideration in the tribunals’ decisions that racial minority women might be relevantly different from racial majority women or racial minority men. In other words, the cases distorted the women’s actual experiences, analogizing them to what would have happened to “raceless women or genderless racial minorities”.^[23]

Most of the scholarly literature available on the intersection of gender with other grounds focuses on the experience of women. Of course, as illustrated in the examples given throughout this paper, for many men, the intersection of gender with another ground of discrimination produces a unique experience of discrimination.

One common problem with not using an intersectional approach can be seen in many sexual discrimination and harassment cases. Stereotypes arising from particular combinations of race and gender are often the source of discriminatory treatment. Sexual harassment cases tend to proceed on the basis that the race, ethnic origin, ancestry of the alleged harasser and the complainant are not relevant. However, there may be stereotypes about the sexuality of women based on their race, ethnic origin, ancestry or place of origin. In one case where a Black woman was sexually harassed by her employer, the evidence revealed that he had said to her “that’s how black people make their living, by doing blow jobs” and the board even noted that the respondent made “a number of references to [the complainant’s] colour” during this testimony. Yet there was no serious consideration of how the complainant had been treated as a young Black woman and no finding of race discrimination. ^[24] In sexual harassment cases, factors such as age, marital status, and sexual orientation can also be relevant.^[25]

In another case, involving sexual harassment of factory workers by their foreman, the board suggested that the sexual harassment was exacerbated by the complainants’ ethnic and linguistic characteristics as well as place of origin and immigration status:

It is clear that Mr. DeFilippis tried to intimidate and manipulate the female workers he desired sexually. He was in a position, as he knew, of being able to hire very dependent, immigrant female workers (very much needing work, not speaking English and being relatively inarticulate, and who perhaps appeared from their cultural backgrounds to more likely subject themselves to male authority) who he could seek to take sexual advantage.^[26]

To its credit the board did recognize that what was experienced by the complainants was not just a product of their gender but also other grounds. However, it did not find discrimination on the basis of race, ancestry, place of origin or ethnic origin. Nor was there any mention of these grounds as an exacerbating factor in the determination of an appropriate remedy.^[27]

In a single ground focused approach, the strategic decision as to where to place the ‘evidentiary focus’ of the claim is often based on which grounds are more ‘palatable’. Several authors have noted that this often results in race being erased. For example, Alexander v. British Columbia^[28] a First Nations woman who was partially blind and had a motor impairment affecting her gait and speech was refused service in a liquor store because the store manager thought she was drunk. Despite the fact that she asserted that the discrimination was on the basis of race, colour, ancestry and/or physical disability, the tribunal characterized the store manager’s refusal to believe her assertions about her disability as discrimination on the basis of disability only and did not consider whether stereotypes about Aboriginal women were at play.

Another common criticism is that the “law’s conception of race is so impoverished that it cannot seem to grasp differences between racial groups.”^[29] Persons who are not members of the dominant group tend to be viewed as a homogenous category of ‘not-white’, ‘racial minority’ or ‘visible minority’. Everyone within that group is treated as being the same and the particular stereotypes or forms of disadvantage that may be experienced by different persons based on their particular identity are not acknowledged. For example, in Wattley v. Quail^[30], an apartment was not rented to a Black man. The respondent gave evidence that a potential tenant would have to be a “person who was compatible with her as she lived alone and she wanted a person with whom she felt comfortable and secure.”^[31] Evidence was given by another tenant, an East Asian woman, that the respondent was not racist because the respondent had rented an apartment to her. However, this did not address the fact that the respondent may have held stereotypes about Black men and may have viewed the complainant very differently based on his gender and race. In that case, the evidence of the other tenant was not successful in defeating the complaint. However, the case illustrates that evidence that a respondent has not discriminated against persons from a different racial background must be used carefully as it can result in a claim of discrimination being defeated, despite the fact that a person may have had a unique experience as a result of their particular identity.

Another concern with combining different racialized groups into a single category is that it tends to assume that only members of a dominant group can discriminate and that racial minorities cannot discriminate against each other.^[32] Future policy work on race ethnicity and origin will provide a more detailed analysis of the experience of racial discrimination.

Further evidence of the difficulty in grasping differences is illustrated by the tendency to treat race, colour, ethnic origin, ancestry and place of origin as a single category. This fails to recognize that these are separate grounds which may intersect to produce a qualitatively different experience for persons who are identified by more than one ground. For example, a recent Canadian Race Relations Foundation report concludes that within racialized groups, foreign-born persons face even greater disadvantage in employment.^[33]

It is important to note that although the discussion of intersectionality in the scholarly literature often focuses on the intersection of race with other grounds, in particular gender, the concept is applicable to all forms of multiple grounds discrimination. A single ground approach has resulted in inappropriate outcomes and the erasure of the complexity of the discrimination in cases involving any combination of grounds including race related grounds, age, disability, sexual orientation, creed and gender. The need for an intersectional approach is therefore necessary to apply a proper analysis, no matter what the combination of grounds involved.

The Commission’s approach to complaints

Complaints to the Ontario Human Rights Commission filed between April 1997 and December 2000 indicate that 48% of the complaints included more than one ground, while 52% cited only one ground of discrimination.

Table 1

Number of Cases with more than one ground

* The data on race includes the grounds of colour and place of origin^[34].

Fifty-six percent (56%) of age complaints included other grounds; 19% of complaints filed on the ground of handicap included multiple grounds; 27% of cases filed on the ground of sex included multiple grounds; 94% of complaints citing the ground of receipt of public assistance included other grounds^[35]. Of all the complaints filed, 18 % of ‘race’ cases included more than one ground. Unfortunately, due to the fact that race has traditionally been treated as also encompassing grounds such a colour and place of origin, this statistic may not be meaningful in reflecting the complexity of the race-related cases the Commission receives.

The approach followed by courts and tribunals in cases such as those discussed above are reinforced when these cases are incorporated into human rights policies and procedures. When decision-makers, as eminent as the Supreme Court, are struggling to apply a multiple grounds analysis, it is not surprising that human rights commissions are also having difficulty. At the same time, when commissions determine that there is sufficient evidence to proceed on a particular ground and not to pursue others, the case tends to be presented as such to the tribunal by commission counsel and will likely be determined on that ground alone.^[36] A self-reinforcing cycle can then be established in which human rights commissions and decision-makers each play a part in perpetuating a single ground focused approach.

During intake, potential complainants are asked to identify the grounds on which they believe discrimination or harassment occurred. Some will indicate all of the grounds that they feel may have been a factor while others may not realize the relevance of another ground. When it comes to light subsequently, usually during an investigation, if the complaint is not promptly amended, it may be too late. Concerns about procedural fairness may be triggered if there is a change in the nature of the case the respondent has to answer. Timeliness may also be an issue. Once the complaint is referred to a board of inquiry, a party may only argue a new basis of liability without amending a complaint where it does not depend on the establishment of new factual allegations of which the respondent had no notice, the assertion of which could cause prejudice.^[37]

Unfortunately, the Commission’s 1994 Guidelines and Recommendations for Dealing with Race Cases from Intake to Board of Inquiry do not discuss the need to address the intersection of race and race-related grounds with other grounds such as sex, disability and age to name just a few. Similarly, the Commission’s Enforcement Manual does not provide explicit guidance on the intersection of grounds. In practice, all of the grounds mentioned in a complaint may not always be investigated. The simplest or most obvious ground may become the focus, with other grounds mentioned in passing or not at all. When all the grounds are investigated, rather than applying an intersectional approach, each ground may be treated as separate and not related to the others. This can result in a finding that there is insufficient evidence on any one ground to send a case to a board of inquiry, despite the fact that the person clearly experienced differential treatment. It can also result in inappropriate comparisons being made with persons identified by some but not all of the same grounds as the complainant.

In other cases, an intersectional approach to the multiple grounds is applied and an accurate picture of the discrimination is captured. For example, in an employment case involving a Black man from a country in Africa who had several children and a non-evident disability, viewing each ground separately, there did not appear to be enough evidence of discrimination on each ground alone to warrant a board of inquiry. Yet there was sufficient evidence that the complainant was experiencing differential treatment for reasons related to Code grounds and not just because of a personality conflict or job performance issues.^[38] Had the Commission treated each ground as a separate and unrelated category, the case would likely have been dismissed. However, the Commission concluded that the incidents that had occurred demonstrated that he had experienced discrimination on an intersection of grounds. In other words, a contextual analysis was used in which the full identity of the complainant was considered. The case was not about the complainant as an individual but rather the differential treatment he received as a result of the confluence of Code grounds.

A potential pitfall in investigating multiple grounds complaints is to compare the complainant to persons who only share some of the complainant’s characteristics. For example, in a hypothetical case involving an allegation that an employer refused to promote a woman with a family because of a “glass ceiling” based on a presumption that women with young children are not sufficiently committed to their careers, it would not necessarily be appropriate to conclude that because the employer has women in management and men with children in senior positions, no discrimination has occurred. To the greatest extent possible, if comparisons are to be used, they should reflect all the aspects of the complainant’s identity. In this hypothetical example, the experience of mothers with young children seeking to advance within the company would likely be the only meaningful comparison. If there are insufficient persons to compare to, it may be better to reflect the limited value of a comparison than to equate the complainant’s situation to one that might be quite different because of the grounds involved. An intersectional analysis would recognize that comparisons must be used with great caution as an inappropriate comparison can lead to the dismissal of a case that should have been adjudicated.

Even where it is clear that there is enough evidence of discrimination on one ground alone, it may be appropriate to consider referring the case to the board of inquiry on the basis of all the grounds that make up the complainant’s identity or on the basis of all of the grounds that might be relevant. For example, if a woman who is a recent immigrant alleges sexual harassment, it might also be appropriate to add the grounds of place of origin, citizenship and ethnic origin to ensure that the investigator and later the board of inquiry can consider whether part of the reason for the harassment was related to the woman’s actual or perceived vulnerability as a recent immigrant, a perception about her sexuality based on her place of origin and so forth. Oral testimony, given under oath and subject to cross-examination, may be more successful in eliciting evidence about the complexity of the complainant’s experience than a Commission investigation.

Jurisprudence of international bodies

To date, international bodies are proceeding largely on the basis of a single ground focused approach. The problem of multiple disadvantage and multiple discrimination, in particular as experienced by minority women, has not been acknowledged in the case law of the European Court of Human Rights and the Human Rights Committee.^[39] Monitoring bodies select one aspect of discrimination and largely ignore other simultaneous violations. This has resulted in a failure to address the totality of the problems and the structural disadvantages experienced by groups such as minority women.^[40]

In a case concerning Britain’s denial to women with permanent residence permits the right to have their spouses join them in Britain, the European Court established a violation on the ground of sex but did not consider in any detail the issue of discrimination based on national origin or birth.^[41] This resulted in a comparison only on the basis of sex, i.e. female permanent residents were compared with male permanent residents, rather than a comparison based on sex and birth. A more appropriate comparison would have compared female permanent residents with male citizens thus showing the true extent of the discrimination.^[42]

Closer to home, a very significant example of the Human Rights Committee’s failure to consider multiple grounds discrimination can be seen in Lovelace v. Canada.^[43] The case involved a complaint about Canada’s Indian Act which provided that First Nations women would lose ‘Indian status’ and the associated rights upon marrying non-First Nations men. There was no similar loss of status for First Nations men marrying non-First Nations women. The Committee chose to focus on the issue of the right to culture, language and religion of persons belonging to minorities. Despite the strong sex discrimination aspect of the case, the Committee did not address in any substantial way the fact that Lovelace was denied the right to enjoy her culture because she was a woman.

The failure to address multiple grounds discrimination at the international level has important consequences. If the European Court of Human Rights or the Human Rights Committee establishes a violation, the states concerned are to amend the law or practice accordingly.^[44] Thus, an incomplete analysis can affect the remedy or outcome. As well, the cases are used as examples and precedents by other states when enacting or amending laws, writing their reports under various international instruments and applying principles before their own national courts.^[45]

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^[16]For insight into why a claimant might choose to frame her case as sex rather than race-discrimination see E. Carasco, “A Case of Double Jeopardy: Race and Gender” (1993) 6 C.J.W.L. 142. Professor Carasco notes the difficulty identifying and proving the basis for the discriminatory conduct:

Proving systemic discrimination based on gender in my case was made possible by the availability of research and statistics relating to women in Canadian universities. Proving systemic discrimination based on the combination of race and gender would have been a lot more difficult simply because of the paucity of women of colour in Canadian universities and the corresponding lack of salary data. The issue of why there are so few women of colour in law faculties is a whole other story. As a woman of colour, I could not help wondering if it was indeed necessary to prove that other women of colour had been treated in a similar fashion before my own treatment, as a woman of colour, could be acknowledged. [at 152]

^[17]Intersectionality: Crossing the Theoretical and Praxis Divide, supra note 7.
^[18]See D. Kropp, “‘Categorial’ Failure: Canada’s Equality Jurisprudence – Changing Notions of Identity and the Legal Subject” (1997) 23 Queen’s L.J. 201, online: QL.
^[19]Ibid. at para. 1.
^[20]Supra, note 14.
^[21]See for example: J. Freeman, “Defining Family in Mossop v. DSS: The Challenge of Anti-Essentialism and Interactive Discrimination for Human Rights Legislation” (1994) 44 U.T.L.J. 41 and Patently Confused: Complex Inequality and Canada v. Mossop, supra note 6.
^[22]N. Duclos, “Disappearing Women: Racial Minority Women in Human Rights Cases” (1993) 6 C.J.W.L. 25 [hereinafter “Disappearing Women”].
^[23]Ibid. at 30.
^[24]Cuff v. Gypsy Restaurant and Abi-ad (1987), 8 C.H.R.R. D/3972 (Ont. Bd. Inq.) as discussed in Disappearing Women, ibid. at 34-5.
^[25]For a sexual harassment case in which the sexual orientation of the complainant was a factor in her experience, see Crozier v. Asselstine (1994), 22 C.H.R.R. D/244 (Ont. Bd. Inq.).
^[26]Olarte v. DeFilippis and Commodore Business Machines Ltd. (1983), 4 C.H.R.R. D/1705 (Ont. Bd. Inq.) [hereinafter Olarte].
^[27]Each complainant received general damages ranging from $1,500 to $4,000 plus interest and lost wages for a total award of $21,000. For a further discussion of remedies see the section The Move Towards an Intersectional Approach.
^[28]Disappearing Women, supra note 22 at 45.
^[29]Disappearing Women, supra note 22 at 43.
^[30](1988), 9 C.H.R.R. D/5386 (B.C.C.H.R.).
^[31]Ibid. at D/5387.
^[32]Disappearing Women, supra note 22 at 43.
^[33]Unequal Access: A Canadian Profile of Racial Differences in Education, Employment and Income, supra note 9 .
^[34]The Commission’s tendency to link place of origin with grounds such as race, colour, ethnic origin will be receiving further consideration in future policy work on race, ethnicity and origin.
^[35]The statistic with respect to receipt of public assistance is not surprising given the relationship between low socio-economic status and other Code grounds. The Commission’s Research Paper Human Rights Commissions and Economic and Social Rights (February, 2000) [unpublished], outlines in detail the relationship between poverty and being a member of a group identified by grounds such as gender, age, family and marital status, disability, race, ancestry, place of origin and citizenship.
^[36]Disappearing Women, supra note 22 at 35.
^[37]See Vander Schaaf v. M & R Property Management Ltd. (2000), 38 C.H.R.R. D/251 (Ont. Bd. Inq.) at para. 14 [hereinafter Vander Schaaf]. In that case, the Commission was denied its motion to amend the complaint to add “age” as a ground of discrimination.
^[38]There were isolated incidents related to each of the complainant’s race, disability and family status. Looking at each ground alone, there may not have been sufficient evidence for a board. Yet it appeared clear that the complainant’s supervisor had issues with him as a Black man from Africa who needed time off due to family responsibilities and as a result of his non-evident disability. It was therefore, the intersection of grounds in this person that led to the discriminatory treatment.
^[39]A.S. Åkermark, “Minority Women: International Protection and the Problem of Multiple Discrimination” in L. Hannikainen, E. Nykänen, eds., New Trends in Discrimination Law – International Perspectives (Turku: Turku Law School, 1999) 85 at 86. The discussion of the treatment of multiple discrimination in cases before international bodies is from this article.
^[40]Ibid. at 99 and 100.
^[41]Abdulaziz, Cabales and Balkandali v. The United Kingdom, ECHR Series A, No. 94 (1985).
^[42]Åkermark, supra note 39 at 101-2.
^[43]Views of the Human Rights Committee in UN Doc. A/36/40(1981).
^[44]Åkermark, supra note 39 at 103.
^[45]Ibid. At 104.