Peter MacKinnon: U.S. Supreme Court's DEI decision has lessons for Canada
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Marlean Ames is a heterosexual woman employed by the Ohio Department of Youth Services, initially as a secretary, subsequently promoted to program administrator and applying in 2019 to enter management. Her application was unsuccessful when the department instead hired a lesbian and demoted Ames from her administrative position — restoring her to a secretarial post — and replacing her with a gay man. Alleging discrimination because she is straight, she sued under Title VII of the 1964 Civil Rights Act, unsuccessfully at trial and in the circuit appeals court, but successfully on appeal to the Supreme Court. Justice Jackson observed, with emphasis, that the Act makes it unlawful 'to fail or refuse to hire or to discharge ANY INDIVIDUAL, or otherwise to discriminate against ANY INDIVIDUAL with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, colour, religion, sex, or national origin.' That Ames was a member of a non-gay majority did not affect the result; 'the law's focus on individuals rather than groups (is) anything but academic.'
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The case was remitted to the lower courts for correction, but it is Justice Jackson's emphasis on individuals that is important here. It is individuals who have equality before the law and it is individuals who must be protected from discrimination based on race, colour, religion, sex or national origin. This does not preclude considerations of race, colour, or other traits, when addressing comparative advantage or disadvantage; it insists only that the focus must be on individuals when making these comparisons.
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Taken along with the 2023 U.S. Supreme Court decision ruling affirmative action unconstitutional, it is clear that the United States and Canada part ways on issues of equality, discrimination and affirmative action. Their laws on these subjects are similar: the U.S. Civil Rights Act and Fourteenth Amendment, and Canada's Charter Section 15(1) and its equivalent in provincial human rights codes, guarantee equality before the law and protection from discrimination based on immutable conditions. But here the similarities end. The unconstitutionality of affirmative action and the emphasis on individual rights in the U.S. stand in marked contrast with the extensive practice of affirmative action and emphasis on group rights in Canada.
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The American experience has lessons for Canadians; we, too, need to reset the DEI debate. Although some group rights are recognized in our Constitution (e.g. Indigenous peoples and minority languages), they do not mandate special treatment apart from their specific texts. The issues here are broader and more fundamental: do we see affirmative action, sanctioned by Section 15(2) of the Charter, as an exception to a general rule prohibiting discrimination, or does its extensive practice in our public institutions suggest that the exception is becoming the rule? Should we re-emphasize individual rights as a unanimous Supreme Court did in Ames v. Ohio? Is DEI a benign practice or an ideological cover for discriminatory practices? If we do not face these questions, test them in our courts, and develop a social consensus around them, differences among Canadians that we have seen to date will pale beside those to come.
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