A recent edition of the Lawyers’ Weekly contained an article entitled Human Rights Commissions: Remove Them, Don’t Reform Them. While I’m sometimes a critic of the work of provincial and federal human rights commissions and tribunals, eliminating them has never struck me as the solution.
Chris Schafer, executive director of the Canadian Constitutional Foundation, stated in his article that “nothing short of abolishment will suffice” to “cure what ails the human rights system.” Talk about throwing the baby out with the bathwater (where did that grisly phrase come from, anyway?).
His recommendation starts with the premise that “discrimination ought to be universally available to everyone” because it is “a natural part of individual behavior.”
According to Schafer, “the right of individuals to make choices, or in other words discriminate, is a fundamental aspect of a free society”.
But, says Schafer, governments selectively determine who is free to discriminate in our society while others (such as landlords, employers and service providers) cannot.
He’s surely correct about that—human rights legislation intentionally limits the discretion of the most powerful actors in our society in order to protect the interests of those at the other end of the spectrum.
In advocating for the abolishment of human rights commissions (and, presumably, the legislation they enforce), Schafer states “the free market offers the best way to improve the lot of those discriminated against.”
Apparently, if human rights legislation governing the activities of private actors is abolished, discriminatory conduct will eventually grind to a halt under its own weight.
As an example, Schafer describes a process by which employers who discriminate in their hiring practices hinder their own competitiveness by passing up some of the best candidates.
Those employers operate at a disadvantage as their non-discriminatory competitors snap up these choice candidates.
The competitive pressures of the free market eventually compel discriminatory employers to “either drop their bigoted hiring practices or go out of business.”
Schafer’s article is, to put it simply, the sort of hokum that can be mistaken for scholarly consideration of the challenges facing our society.
First, the theory that the “free market” will lead to the disappearance of discrimination is contradicted by history.
If Schafer’s theory is correct—that market forces, alone, will sanitize our society of discrimination—why hasn’t it already occurred?
The volume of work done by human rights commissions across the country, addressing many thousands of complaints per year, strikes me as proof the free market isn’t having the effect suggested by Schafer.
If it were, wouldn’t these commissions be experiencing a noticeably declining rate of complaints?
Second, at its essence, Schafer’s theory is based on the dual premises that discriminatory practices impose penalties on the perpetrator and that these penalties serve as a sufficient incentive for the perpetrator to change its ways.
But the market forces dynamic can only (potentially) work its magic if the discriminator is unable to replace the victims of discrimination—employees, customers, business partners, etc. If they can be replaced, easily or otherwise, then the penalty effect may never occur.
The victims of discrimination can almost always be replaced because our society rarely reaches the point at which there is a shortage of human resources.
If, for instance, there is a true labour shortage then the penalty effect may occur but this is certainly not a frequent scenario.
Even if engaging in discriminatory practices does impose a penalty on the perpetrator, what doesn’t hold water is that the loss of these valuable contributors will, in and of itself, necessarily motivate the discriminator to change its ways. It might be validly argued, in fact, that the loss of these contributors is precisely the objective of the discriminator.
There may be a valid argument out there somewhere for the elimination of our human rights commissions. Unfortunately for Schafer, his isn’t one of them.
This subject matter is provided for general informational purposes only and is not intended as legal advice.
Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. For more information about his practice, or to subscribe to You Work go to: