November 19th, 2012
On November 8th, the British Columbia Court of Appeal (“BCCA”) released its decision in Friedmann v MacGarvie, 2012 BCCA 445 [Friedmann], stating that sexual harassment constitutes sex discrimination. While one might assume that this would be an obvious conclusion, the case is thought-provoking because of the role played by “differential treatment” in the discrimination analysis. The complexities of this analysis have been recognized in both human rights jurisprudence, and in equality jurisprudence under s. 15 of the Charter. Specifically, the Supreme Court of Canada’s (“SCC”) comments in Withler v Canada (Attorney General),  1 SCR 396 [Withler] shifted the focus of the s. 15 analysis away from comparator groups after recognizing that this intense focus tended to circumvent a more meaningful analysis of the conduct at issue. While the BCCA’s decision is positive insofar as it removes the need to establish differential treatment where evidence of sexual harassment is adduced, the Court’s analysis is not as robust as it could have been and still relies too much on the presence of differential treatment to ground a finding of sex discrimination.
In Friedmann, Ms. MacGarvie was a tenant who rented an apartment in a building owned by Mr. Friedmann. She terminated her tenancy after one year because she believed that Mr. Friedmann treated her inappropriately. Mr. Friedmann did not challenge the finding of sexual harassment, but argued that the presence of sexual harassment could not justify a finding of sex discrimination because Ms. MacGarvie had not adduced evidence to show that he had treated male tenants differently; in other words, she had not proven differential treatment.
The Tribunal found that because there was very little evidence regarding Mr. Friedmann’s treatment of male tenants, it could not conclude that there had been any discrimination based on sex. The Tribunal went on to consider Ms. MacGarvie’s claim of sexual harassment as a distinct issue, and found that Mr. Friedmann had sexually harassed Ms. MacGarvie. The Tribunal awarded remedies on this basis. At trial, the judge rejected the claim that sexual harassment could be a distinct avenue through which to prove discrimination based on sex. The judge emphasized that a finding of discrimination rested on evidence showcasing differential treatment between male and female tenants, and because Mrs. MacGarvie had not been able to prove differential treatment, her claim could not succeed.
The BCCA, however, found that sexual harassment could constitute discrimination based on sex, and that where evidence of sexual harassment is put forward, the claimant does not need to prove differential treatment. As stated above, Mr. Friedmann submitted that Ms. MacGarvie was required to prove differential treatment for her claim of sex discrimination to succeed. In response, the Court stated that demonstrating differential treatment is not the only way to establish a claim. Instead, focusing on the nature of the sexual harassment could be sufficient to establish that the gender of the claimant was a factor in the adverse treatment. The Court went on to state, however, that in cases where evidence of sexual harassment is not adduced, the claimant would still need to prove differential treatment to justify a finding of sex discrimination.
According to the Court’s reasoning, then, sex discrimination can be proven in two ways. A claimant may adduce evidence of sexual harassment; or a claimant may adduce evidence of differential treatment based on sex. I wonder, though, why it would not be possible to focus on the nature of the particular conduct in question, whether sexual harassment or otherwise, to ground a finding of discrimination without requiring the claimant to provide evidence of differential treatment. The emphasis on the necessity of differential treatment in cases of sex discrimination is concerning because it threatens to shift the focus away from the adverse treatment suffered by the claimant and onto a precarious search for a comparator group–the exact concern that prompted the SCC to move away from a comparator analysis in Withler and focus instead on the actual impact suffered by the claimant. The SCC did so precisely because the search for a comparator group often precludes engaging with the disadvantage created by the conduct at issue.
Now, one might argue that in a case of sex discrimination, the comparator group is easy to find: if a woman is alleging discrimination based on sex, the obvious comparator group is men. But positing women on the one hand, and men on the other as comparator groups is problematic. The purpose of the comparator group analysis is to find a benchmark against which to measure the conduct suffered by the claimant. If the analysis requires a strict focus on a comparator group, then a female claimant’s assertion that she has been discriminated against on the basis of sex would falter if men were also discriminated against on the basis of sex. This would be problematic not only because it might suggest that a male landlord (for example) cannot engage in discriminatory conduct against both men and women in a way that is sexist and gendered; but also because too strict an approach to the existence of differential treatment would eviscerate a claim of discrimination where the comparator groups are treated equally as poorly.
One might think: doesn’t the essence of sex discrimination imply that men and women are treated differently such that one group (typically women) are treated as less worthy than men? While it is true that sex discrimination manifests itself this way, my concern is that recognizing discrimination only when it manifests itself in this way—that is, only when men and women are treated differently—threatens to narrow the various types of conduct which should be recognized as discriminatory by precluding the recognition of discrimination in a context where both men and women suffer from derogatory comments or conduct. For example, you might have a landlord who makes derogatory comments to both male and female tenants as a way to assert power over his tenants. The comments themselves might take on a different content depending on whether they are directed at men or women, but the fact that the landlord is making such comments to both men and women should not preclude a finding that discrimination based on sex has occurred. In other words, discrimination based on sex arises when an individual (or group of individuals) is treated in an adverse way because of his or her sex, and these adverse consequences can be suffered by both men and women at the hands of one individual. As such, the focus of the analysis should be on the conduct that constitutes discrimination, not on the comparison between various groups deemed relevant to the analysis.
It is also important to note that although this is a case based on sex discrimination, the Court conflates “sex” and “gender.” Sex refers to the biological difference between “male” and “female” categorized on the basis of sex organs. Gender is a socially constructed category whereby attributes and roles are imparted to individuals on the basis of sex. Sex may be a starting point with which to categorize individuals, but the performance of one’s gender can also determine the nature of the harassment and discrimination at issue. To link back to a point I made earlier regarding the problems with using “men” and “women” as comparator groups, positing “men” and “women” as binary categories reproduces an arbitrary hetero-normative construction of gender, which narrows the paradigm within to recognize sex and gender discrimination. Importantly, this criticism is not directed only to the BCCA’s decision in this particular case. Instead, problem with the language used is a more pervasive issue affecting the jurisprudence of sex and gender discrimination as a whole.
When thinking about how to approach the discrimination analysis, the Supreme Court of Canada’s recent decision in Moore v British Columbia (Education),  3 SCR 360 [Moore] may be helpful. To briefly summarize, this case involved a claim of discrimination based on disability brought by Frederick Moore, the father of a child suffering from dyslexia. Moore argued that his son Jeffrey was denied access to meaningful education because of his disability. At trial, the judge determined that Jeffrey’s situation should be compared to other special needs students, not to the general student population (which had been the comparator context used by the Tribunal). Justice Abella, writing for the Court, stated this resulted in a “separate but equal” analysis and that “The failure to compare Jeffery to the appropriate comparator group tainted the entire discrimination analysis.” Justice Abella went on to approve the comments made by Justice Rowles in dissent at the Court of Appeal. Justice Rowles stated that the comparator analysis was unnecessary because the focal point of the analysis should have been whether Jeffrey had been deprived of meaningful access to education services. Justice Abella stated:
The inquiry is into whether there is discrimination, period. The question in every case is the same: does the practice result in the claimant suffering arbitrary—or unjustified—barriers on the basis of his or her membership in a protected group. Where it does, discrimination will be established.
Both Friedmann and Moore provide opportunities to consider the dangers of overemphasizing the importance of proving differential treatment to ground a claim of discrimination. Perhaps we should start thinking about discrimination as something which involves more than the (perceived) presence of difference; perhaps we should think about discrimination as a way to create a power imbalance by treating someone else as less worthy because of a particular characteristic they possess. By understanding discrimination in relation to abuse of power, rather than in relation to difference, we may be able to catch more instances of discrimination than are currently being captured by too rigid a focus on the presence of differential treatment.[filed: Human Rights]