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Inclusive Equality

Inclusive Equality: The Relational Dimensions of Systemic Discrimination in Canada

Copyright Date: 2010
Pages: 267
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  • Book Info
    Inclusive Equality
    Book Description:

    Inclusive Equality explores the legal meaning of equality, examining both the substantive conditions of inequality and the dynamic institutional and structural processes that reproduce it. It provides a critical review of evolving conceptions of equality and systemic discrimination in Canada, tracing developments in both the legislative and constitutional domains.

    eISBN: 978-0-7735-8088-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-2)
  4. Introduction
    (pp. 3-14)

    I have often reflected upon the wisdom of Mari Matsuda’s words, which remind us of the importance of articulating the meaning of human rights concepts in concrete, everyday terms. For if we cannot translate the rhetoric of justice, democracy, human rights and equality into the concrete contexts of everyday injustices, we will not be able to build upon these norms to effect social change. And optimistically, that is the purpose of this book: to engage the reader in thinking about how the legal norm of equality may assist us in understanding and remedying the continued realities of social inequality and...

  5. 1 The Rise of Statutory Equality Rights: Confronting Systemic Discrimination and Complex Identities
    (pp. 15-36)

    Throughout the nineteenth century and well into the twentieth century, discriminatory exclusions were pervasive in Canada and accepted in judicial understandings of both the common law and civil law. Judges allowed discrimination as an inevitable byproduct of freedom of contract or as an integral component of private property rights.¹ Private prejudices were beyond the reach of the rule of law. The failure of courts to conclude that discriminatory exclusions violated fundamental public policy and legal standards, such as compliance with “good morals and public order,” attests to how discrimination can be embedded in the dominant normative fabric of a society.²...

  6. 2 Constitutional Equality: Challenges and Possibilities
    (pp. 37-64)

    The inclusion of equality rights in the Canadian constitution in the early 1980s ushered in a new era of government accountability for its choices about inclusion and exclusion.² Equality became both a constitutional norm and a symbol of a commitment to an inclusive society. Key developments included the opening up of civil marriage to same-sex couples, acceptance of symbols of religious diversity in public spaces, growing acknowledgment of systemic inequalities, and recognition of the importance of accommodating the needs of persons with disabilities.³

    While there had been some recognition of equality in 1960 in the quasi-constitutionalCanadian Bill of Rights,⁴...

  7. 3 Contexts of Inequality: Identifying and Remedying Discrimination
    (pp. 65-79)

    Developing a vision of inclusive equality that is attentive to both the substantive and procedural harms of discrimination raises complex questions regarding the type of evidence and knowledge required to prove a violation of equality rights. In this regard, it is important to consider more fully the contours of a contextual approach to legal interpretation — an approach that emerged to reinforce the shift from formal to substantive equality.

    The origins of contextualism as a constitutional methodological approach are usually traced to Madame Justice Wilson’s judgment inEdmonton Journal v. Alberta(Attorney General), where she explained that “a right or freedom...

  8. 4 Developing a Systemic Approach: Experiential Knowledge and Sexual Harassment
    (pp. 80-102)

    In this chapter, I focus on sexual harassment in the workplace to illustrate the importance of a multi-layered contextual approach to inequality. I maintain that an understanding of how vulnerability to harassment is embedded in organizational structures, practices, and institutional cultures is critical to the development of effective strategies for eliminating sexual harassment in particular, and discrimination more generally. While our understanding of discrimination has been revolutionized by the recognition of adverse effect and systemic discrimination, the problem of sexual harassment has in many respects failed to incorporate the full implications of a systemic analysis and continues to focus on...

  9. 5 Caring and Relations of Equality
    (pp. 103-118)

    One important dimension of a contextual approach to equality is attentiveness to the relationships of everyday life. Though operating predominantly at the micro and institutional levels, relational issues are relevant as well to macro concerns of equality. In this chapter, I focus on relations of care and explore their relevance to the advancement of inclusive equality. My inspiration for this focus is the passage cited above by Patricia Monture in which she teaches us about the integral connection between caring and equality. These two concepts are not usually linked in law, life, or jurisprudence. Yet such an insight immediately resonates...

  10. 6 Democracy and Relations of Equality
    (pp. 119-135)

    In this chapter, I explore the wisdom of C.B. Macpherson’s insight, assessing its relevance beyond the political domain into the social and economic institutions of everyday life, such as the workplace, educational institutions, and the family.² As in the case of caring, the fostering of more democratic social relations in these institutional contexts would enhance equality rights and contribute to more inclusive citizenship. Moreover, the affirmation of substantive equality in Canadian equality law and legal recognition of systemic discrimination have effectively opened up a juridical space for linking democracy and equality rights more overtly — a space that resonates with a...

  11. 7 Conclusion: Toward Inclusive Equality
    (pp. 136-148)

    To identify equality rights violations and begin structuring longterm remedies to patterns of under-representation, exclusion, and harm, it is critical to scrutinize public and private decision-making and the institutional processes that create and reproduce inequality. By examining the relational dimensions of systemic inequality, we can begin to challenge the absence of consultation, respect, caring, democracy, and mentoring in a whole range of institutional and social contexts. Such process-related problems help to explain the persistence of inequality and exclusion over time. A better understanding of systemic processes will also allow us to imagine ways to restructure human and institutional relationships to...

  12. Notes
    (pp. 149-206)
  13. Bibliography
    (pp. 207-240)
  14. Index
    (pp. 241-256)