So, what IS discrimination?

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Discrimination is a concept that is often tossed around whenever people are treated differently. It can be confusing because sometimes we treat people differently on purpose to include them fairly–like allowing students with disabilities extra time on exams to compensate for how their disability slows their writing compared to other exam-writers; or giving someone new to golf a “handicap” to make the game more fair for them; or giving some employees Saturdays off for religious observance. Why isn’t that considered “discrimination”? These actions are designed to enable people to participate without a disadvantage that would otherwise occur, due to characteristics which are not relevant to the activity at hand. So what is discrimination?

Discrimination is defined in UNB’s Policy and Procedure on Discrimination, Sexual Harassment and Harassment as:

“differential treatment of an individual or group of individuals which is based, in whole or in part, on one or more Ground as defined [in the New Brunswick Human Rights Act and this policy], and which thus has an adverse impact on the individual … that is not…suffered by other individuals…, who do not share such Ground(s)…” (Section 3.01.4)

Let’s unpack that a little bit. Discrimination is treating people differently, but based on a human rights designated ground (disability, race, religion, sex, sexual orientation, national origin, ancestry, age, and 4 more). Those are personal characteristics that are an inherent part of the person’s identity.

This type of treatment has an adverse impact or a negative effect on the person that would not be experienced by people without that characteristic. For example, excluding same-sex partners from health insurance benefits that other common-law or married partners enjoy is a negative effect based on a human rights designated ground – sexual orientation. Married or common-law partners who are straight do not face that disadvantage. That’s why more employers now include same-sex partners in benefit plans.

Let’s go back to people whose religion requires worship or observance on Saturday. Saturday work schedules prevent Saturday observers from practicing their religion, so requirements to work on Saturday create a negative effect on them that other religious observers do not experience. Allowing Saturday observers not to work on Saturday respects their religious practice and eliminates the negative effect of Saturday work requirements that other workers would not face. (O’Malley v. Simpson-Sears Ltd. (1985), 7 C.H.R.R. D/3102 (S.C.C.))

Not all distinctions between members of our community are considered to be discrimination. It is not age discrimination to restrict minors from voting or drinking, for instance, because that regulation is based not just on age, but on the developmental ability to be an informed citizen with sufficiently developed judgment to make socially responsible decisions. By contrast, sending workers home simply because they’ve clocked 65 years on the planet is age discrimination. There must be evidence of lost competence, not just accumulated years.

I hope this helps clarify what is and is not meant by discrimination. Next time, we’ll explore the concept of harassment.