While you’re here, you may wish to attend one of our upcoming workshops:
Interviewing and Dealing with Difficult Witnesses
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
Attitudes towards equality have evolved rapidly over the past few years, as have the standards by which we measure discrimination. As a result of these shifts, a question has emerged regarding whether the concept of “reverse discrimination” exists – that is, can individuals who have not been historically disadvantaged experience discrimination? This in turn begs the broader question – does discrimination occur anytime there is any difference in treatment?
As outlined below, the Ontario Human Rights Tribunal has been disinclined to accept applications of reverse discrimination, on account of the need to promote “substantive equality,” rather than “formal equality.”
Substantive versus Formal Equality
The case law has been clear that the Human Rights Code (the “Code”) aims to remedy “substantive inequality,” rather than “formal inequality.” Substantive inequality requires not only differential treatment, but differential treatment which can create a disadvantage by perpetuating a prejudice or stereotype.1 This is in contrast with formal inequality, which occurs anytime individuals are treated differently, regardless of the reasons that may exist for the differential treatment.
Accordingly, under human rights legislation such as the Code, the focus of a discrimination analysis ought to be on whether the action in question reinforces, perpetuates, or exacerbates a disadvantage. The Supreme Court of Canada has also recently held that membership in protected groups “often brings with it a unique constellation of physical, economic and social barriers,” and that the identical treatment of individuals, without accounting for such barriers, may in fact produce inequality.2 In other words, differential treatment is sometimes necessary in order to achieve true, substantive equality.
Bearing these principles in mind, the following applications were dismissed by the Tribunal on account of failing to establish that substantive equality was violated.
In Lindsay v Toronto District School Board,3 the applicant, a white, Scottish male, alleged that the respondent school’s team name, mascot, and logos portrayed a stereotypical image of Scottish people as being angry. He further alleged that this portrayal constituted an appropriation of Scottish identity, which created a disadvantage for Scottish people. In support of his argument, the applicant provided articles and publications which purportedly demonstrated the current and historical discrimination faced by Scottish people.
He also raised the comparison of Indigenous-themed logos, mascots, and imagery, noting that the Ontario Human Rights Commission had previously called on municipalities to remove such imagery from non-Indigenous sports organizations. He further submitted that his Tribunal application would receive less scrutiny if he were not white and Scottish.
In dismissing the application as having no reasonable prospect of success, the Tribunal stated that the applicant failed to provide evidence which demonstrated that Scottish people were stereotyped as angry, uncivilized people. Specifically, all but one of the applicant’s sources were specific to the United Kingdom, and none of the sources discussed the experience of Scottish people in Ontario. Moreover, the lone Canadian source discussed the appropriation of Gaelic culture in Nova Scotia, rather than the stereotypes faced by Scottish people.
In addressing the applicant’s comparisons to Indigenous-themed logos and imagery, the Tribunal stated, “Choosing Indigenous people as a comparator seems a poor choice for the applicant’s purposes… the history of Indigenous people in Canada, including Ontario, has undoubtedly been one that includes significant marginalization and disadvantage”; as such, it would “hardly be necessary” for an Indigenous applicant to establish disadvantage, prejudice, and stereotyping in an application before the Tribunal. Conversely, the applicant’s inability to provide evidence of negative stereotypes or disadvantages faced by Scottish people in Ontario resulted in the dismissal of his application as having no reasonable prospect of success.
Higher cover charge fees for men
In Maclean v The Barking Frog,4 the applicant alleged that the respondent (a bar and restaurant) discriminated against him on the basis of sex by charging women a lesser cover fee than men, thereby perpetuating a belief that men were less worthy than women.
In dismissing the application as having no reasonable prospect of success, the Tribunal reiterated that the Code strives to achieve substantive equality, rather than formal equality, and that not all formal distinctions in treatment amounted to discrimination.
The Tribunal went on to reject the argument that the different cover charges implied that men were less worthy than women, noting:
There are many things that could be said about societal beliefs in Ontario, but the notion that men are less worthy than women is not among them. In fact, the entire history of gender discrimination in this province reveals the opposite, which is why women had to fight for basic equality through a right to vote and for equal pay for equal work, to give just two examples. While progress has been made, discrimination against women in our society still persists… In my view, the notion that charging a lower cover charge for women somehow demeans men as a gender in the overall societal context does not bear scrutiny.
The applicant had also argued that the different cover fees discouraged men from entering the bar. The Tribunal rejected this argument and accepted that the purpose of the different cover fees was to attract more women to the establishment – and in turn, increase the attendance of men due to the presence of more women. The Tribunal denied that this strategy could be viewed as substantive discrimination, “in light of the privileged position that men hold in our society.”
The Tribunal ended its decision by noting that while the applicant may have viewed the differential cover charges as being unfair, unfairness “in some general sense does not mean it is discriminatory within the meaning and purpose of human rights legislation.”
Similarly, in Roncali v Cabana Pool Bar,5 the applicant, who self-identified as male, alleged that the respondent’s policy of charging men a higher cover charge than women amounted to discrimination due to sex and gender identity. The Tribunal followed the reasoning in Barking Frog to find that differential cover fees between men and women did not amount to substantive discrimination based on sex, insofar as it did not perpetuate a stereotype or disadvantage for men.
The applicant in Roncali further argued that the respondent discriminated on the basis of gender identity, as its staff failed to verify his gender and charged him the higher cover fee simply on the basis of the applicant’s physical appearance and dress. The applicant stated that this process left room for error and could pose challenges for transgendered individuals.
The Tribunal dismissed this argument by first noting that, in order to establish a contravention of the Code, the applicant must belong to the protected group in question. In this instance, the applicant was not transgendered; it was therefore not open to him to make a claim of discrimination due to gender identity. The Tribunal further stated that there was no factual basis to the applicant’s claim; his argument was based solely on a hypothetical scenario in which he was transgender and/or a transgendered person may have encountered difficulties at the respondent’s establishment. As such, the application was dismissed as having no reasonable prospect of success.
Assignment of male-only clients
In Galuego v Spectrum Health Care,6 the applicant was a male personal support worker (“PSW”) for the respondent employer, a home health care provider which sent PSWs to clients’ homes to assist with various personal tasks, including bathing and dressing. The applicant alleged that the respondent employer discriminated on the basis of sex by assigning the male PSWs to only male clients, while female PSWs were assigned both male and female clients. The applicant stated that as a result of this differential treatment, he worked fewer hours than his female counterparts.
The respondent acknowledged that male PSWs were not assigned to female clients. However, it explained that most female clients preferred female PSWs, due to the intimate nature of the duties that the PSWs performed.
The respondent also provided evidence to demonstrate that the applicant in fact worked more hours than the average female PSW. When presented with this evidence on cross-examination, the applicant replied that his concern was not with his hours of work, but that he felt inferior as a result of the respondent’s failure to assign him to female clients. In his closing submissions, he also noted that he lost self-respect because the respondent viewed him as a sexual predator.
The Tribunal found that the respondent’s differential treatment did not amount to substantive discrimination, as it did not perpetuate an arbitrary disadvantage on the applicant. Rather, the practice of not assigning male PSWs to female clients was rooted in the inequality between men and women, which included sexual harassment and violence against women. It was also noted that the female clients’ vulnerability was compounded by the fact that they tended to be elderly.
The Tribunal also assigned little weight to the applicant’s modified evidence that the differential treatment made him feel inferior, or that he lost self-respect. The Tribunal noted that these arguments were not in his original application or testimony-in-chief, nor was there any evidence that the respondent viewed him as a sexual predator. The Tribunal further stated that the applicant’s modified position “was simply an unconvincing, after-the-fact attempt to shore up his allegation of discrimination in the face of credible and reliable evidence that undermined his position.”
Based on the foregoing, the Tribunal dismissed the application.
Takeaways for Investigators
While formal inequality is often easy to detect (i.e., is there differential treatment?), substantive inequality requires a more nuanced approach. To establish substantive inequality in a discrimination allegation, organizations and investigators may wish to consider the following:
- Does the complainant have standing to bring forward their discrimination claim – i.e., are they a member of the protected group that they allege is being discriminated against
- Has the complaint made out a prima facie case of discrimination that warrants an investigation? Specifically, has the complainant provided relevant, supporting evidence to demonstrate that the impugned conduct perpetuates a disadvantage, prejudice, or stereotype about the protected group to which they belong?7
- Bear in mind that different treatment is not automatically discriminatory. The Tribunal’s decision in Lindsay confirmed that the same type of issue (i.e., Indigenous- and Scottish- themed imagery) may receive two different responses for perfectly legitimate reasons.
- Consider the credibility and consistency of the evidence. As per the decision in Galuego, modified evidence can weaken the legitimacy of an argument, and indicate an attempt to deflect unfavourable evidence.
- Has the respondent provided a non-discriminatory explanation for the differential treatment in question? Is this explanation credible in the circumstances?
- Is the differential treatment part of a “special program” under section 14 of the Code? This provision protects differential treatment from discrimination claims where it is part of a program intended to assist historically disadvantaged groups. Examples of special programs have included women’s-only gyms and support programs for single mothers.8 For further information, you may wish to refer to the Ontario Human Rights Commission’s guide to special programs.
- Consider your mandate and the threshold for discrimination. Does your policy define “discrimination” as substantive inequality or simply formal inequality? Being familiar with the threshold will inform the type of evidence needed to establish discrimination.
The above-noted cases provide important insight when examining the merits of a discrimination claim raised by a historically non-marginalized individual. While discrimination can take many forms, it is nonetheless incumbent on organizations and investigators to critically assess each complaint, bearing in mind the true purpose of the Code: to protect substantive equality.
1 Ontario (Director, Disability Support Program) v Tranchemontagne, 2010 ONCA 593.
2 Fraser v Canada (Attorney General), 2020 SCC 28.
3 2020 HRTO 496.
4 2013 HRTO 630
5 2020 HRTO 275
6 2016 HRTO 1367.
7 For further information about satisfying the prima facie threshold, see this accompanying post.
8 See Vandervelde v Goodlife Fitness Centres Inc., 2012 HRTO 1042 and Young v Lynwood Charlton Centre (2012) HRTO 1133, respectively.
New 2021 Virtual Workshop Schedule – Now Available!
Our 2021 workplace investigation workshop schedule is now available on our website. Click here to view our courses and register today!