In Defence of Anti-Discrimination Laws

By l'Hon. Irwin Cotler on May 28, 2009

Tom Flanagan, the former Conservative campaign manager and university professor, went on the offensive last week arguing that anti-discrimination legislation should rightly target only government – but not private individuals’ – action. This thesis is as provocative as it is dangerous. Far from demonstrating the uselessness of the law, Mr. Flanagan’s comments instead remind us of how vital a role it plays.

The idea behind Mr. Flanagan’s suggestion – that the market is the proper regulator for moral as well as economic behaviour – is not a new one. Long before our provincial (and later federal) governments started prohibiting discrimination, the country’s courts were declaring that a business-owner was maître chez lui—that he had total freedom to decide how to run his establishment. Mr. Flanagan simply ignores the entire human rights revolution – and the law’s role in that revolution – that followed.

The simple reason for prohibiting discrimination in private contracts and the like still resonates today: Treating some members of society as sub-human is not just morally wrong and not just economically unwise—it is contrary to the basic principles upon which we want to govern our society.

Accordingly, we chose not only to make discrimination illegal, but also to create human rights commissions—both to help victims of discrimination seek compensation and to promote human rights and anti-discrimination principles more generally. There is a reason why we made this choice rather than having “broken contract commissions” or “negligence commissions”—discrimination against individuals in our society scars our society itself, in ways that broken contracts and negligence do not. 

And thus we decided to do more than formally protect victims of discrimination in law. We decided that we had to take on the responsibility of ensuring these disproportionately poorer and less powerful members of society – with lesser means to access justice – were able to fight back against those who practice prejudice against them.

So the first point against Mr. Flanagan’s thesis is that anti-discrimination laws are about more than regulating the market. They are about people – victims – and the statement that our Canadian society will not acquiesce in their suffering, even if such suffering could eventually be “corrected” by the market in the long run.

Which brings us to our second point: that while the market may work things out in the long run, as John Maynard Keynes put it, “in the long run, we are all dead.”

In theory, the market could solve a lot of our problems. Manufacturers with lax safety standards would, over the years, get a bad reputation from all the injuries and deaths they caused and, eventually, would be forced to go out of business (or, more likely, continue business under a different name until caught again). But we are not willing to sacrifice our children’s lives in the meantime for the market to engage in this weeding out process, and we should not be willing to sacrifice our minorities’ lives in the meantime while the market corrects discriminatory practices either.

Indeed, Mr. Flanagan has stated his goals very conservatively: that discrimination may not be “abolished” by markets, but at least would be “eroded”; and that while this effect may not be immediate, it will happen “over time.” Our third point is that, even expressed as such – and we doubt most Canadians would embrace so modest an anti-discrimination policy – Mr. Flanagan’s theory is still far from convincing.

For one thing, it is far from clear that economics alone would necessarily force discriminators to change their ways. Targeted and covert discrimination may not always lead to failure, even “over time.” Is a restaurant-owner who quietly hires only white hands to make his sandwiches really at so much of a competitive disadvantage that his business becomes unviable? 

Moreover, even if discrimination was always “costly to the discriminator” in economic terms, the idea that this cost outweighs its benefits for the discriminator does not necessarily follow. Discriminators are motivated by many things, and chief among them has never been economic efficiency. The prototypical black man denied a room at a hotel was not always followed by a line-up of white men willing to take his place and pay the same. We cannot count on discriminators acting in an economically rational manner.

From a practical point of view, the market is bound to fail to address and redress discrimination in a satisfactory manner. But from a moral and social point of view, the idea of repealing our anti-discrimination laws in the private sphere is simply repugnant. Discrimination must be seen as an open wound for all Canadian society. And this wound cannot be healed by an invisible hand. 


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