In conversations with friends, family, and coworkers, in Wente-esque newspaper columns, and in recent local and national debates about discrimination and free speech on university campuses, you may have encountered the idea that “identity politics” are bad. That acknowledging and responding to individual and systemic discrimination on the basis of race, Indigeneity, disability, religion, sex, gender identity, gender expression, sexual orientation, and other marginalized identities is petty, distracting, and divisive. That people whose personal and political advocacy is based around their intersecting identities, such as queer people of colour or women with disabilities, are “self-involved” or “obsessed” with identity.
But the reality is that people experience the world differently based on these facets of their identity and how they intersect.
I think about this in the context of work law. Work law is also about sex, gender identity, and gender expression, such as the rights of workers, particularly women, trans, and Two Spirit workers, to be free from gender-based discrimination and sexual harassment and assault in the workplace, and the rights of pregnant workers to be hired, work, and return to work; it is about race, such as the rights of Indigenous workers and workers of colour / racialized workers to work free from discrimination; it is about disability, such as the rights of workers with mental and physical disabilities to be accommodated in the workplace and utilize prescribed medications; it is about religion, such as the rights of workers to pray, take time off to observe religious holidays, and wear religious symbols in the workplace; it is about sexual orientation, such as the rights of lesbian, gay, bisexual, queer, questioning, pansexual, Two Spirit, and asexual people to work free from harassment. Work law, so much of the time, is also human rights law.
Lawyers, arbitrators, judges, and tribunals must understand how these identities and their intersections inform people’s experiences, both in the workplace and in the world in general.
American feminist legal scholar and critical race theorist Kimberlé Crenshaw coined the term “intersectionality” to represent the way in which identities including class, race, gender, sex, sexual orientation, and disability exist simultaneously within an individual person, and inform that person’s experiences of the world. Intersectionality recognizes that, for example, the sexism experienced by white women in the workplace is different from that experienced by women of colour due to the way it intersects with racism.
Courts and tribunals have recognized the necessity of an intersectional understanding of identity-based discrimination. In Baylis-Flannery v. DeWilde, the Ontario Human Rights Tribunal referred to “useful secondary sources” that explained how reliance on a single axis of discrimination where discrimination has occurred on multiple grounds tends to “minimize or even obliterate” the true impact of intersectional discrimination (2003 HRTO 28, para 144). In the case of the complainant, who alleged discrimination by her employer on the basis of sex and race, the Tribunal found that the discrimination she experienced was intersectional, and observed:
While the findings of discrimination made in this case are of sufficient gravity that Ms Baylis-Flannery could succeed on either enumerated ground of race or sex, or on both grounds, one set following the other, the law must acknowledge that she is not a woman who happens to be Black, or a Black person who happens to be female, but a Black woman. The danger in adopting a single ground approach to the analysis of this case is that it could be characterized as a sexual harassment matter that involved a Black complainant, thus negating the importance of the racial discrimination that she suffered as a Black woman. In terms of the impact on her psyche, the whole is more than the sum of the parts: the impact of these highly discriminatory acts on her personhood is serious. (2003 HRTO 28, para 145)
Human rights tribunals have also found discrimination based on the intersection of the grounds of age and gender (Arias v. Desai, 2003 HRTO 1), sex and ethnic origin (Morrison v. Motsewetsho, 2003 HRTO 21), age and disability (Comeau v. Cote, 2003 BCHRT 32), and ancestry and family status (Flamand v. DGN Investments, 2005 HRTO 10), among others.
In Radek v. Henderson Development (Canada) Ltd., the British Columbia Human Rights Tribunal found intersectional discrimination on the basis of race, colour, ancestry, and disability (2005 BCHRT 302). The Tribunal also observed of the complainant, who was Indigenous, disabled, and “economically disadvantaged”, that though her poverty was not a prohibited ground of discrimination under the Human Rights Code, it was also “part of who she was and how she presented” when she was discriminated against, and was “integrally interrelated with [her] identity as an Aboriginal, disabled woman” (para 467).
In the context of refugee claims, the Federal Court has found that failing to engage in an intersectional analysis of discrimination constitutes an error warranting judicial review (Gorzsas v. Canada (Minister of Citizenship & Immigration), 2009 FC 458, paras 40-41; Djubok v. Canada (Minister of Citizenship and Immigration), 2014 FC 497, paras 18-19). In Gorzsas v. Canada (Minister of Citizenship & Immigration), the Court wrote:
Findings of the cumulative effects of discrimination require an analysis beyond a bare acknowledgement that the individual had these risk factors. It requires canvassing specifically in this case, what risks would face a gay, HIV positive Roma returning to Hungary. This type of analysis is different than analyzing singly what risks faces a gay man, then a HIV positive person, and then a Roma person which is what was done by the officer. I agree with the applicant that the officer’s reasons fail to address the “intersectionalities of the evidence and failed to treat the applicant as a sum of his parts”. The officer did not consider the evidence in the manner that is in accordance with jurisprudence and, as such, failed to truly gauge the cumulative effects of the discrimination faced by the applicant. (2009 FC 458, para 36)
The Nova Scotia Barristers’ Society’s Code of Professional Conduct requires that lawyers perform all legal services to the standard of a competent lawyer. The Code defines a “competent lawyer” as one who “has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter”, which requires that the lawyer know the substantive law, investigate facts, and identify issues. In order to competently represent a client in labour and employment law, and in any area of law, lawyers must understand how their client’s intersecting identities impact their lived experiences, and by extension, their legal issues. For example, this requires identifying how the workplace harassment experienced by a trans person of colour with a disability may be informed by the intersection of their sex, gender identity, gender expression, race, colour, ethnic or national origin, and disability.
Recognizing that people’s intersecting identities inform their experiences of discrimination is not petty, distracting, or divisive. It is realistic. And in the context of legal analysis, it is required.
For more information about work law and human rights, contact Mary Burnet.