Part I - The Ramp to Hell
Perhaps the people who first dreamed up Ontario's Human Rights Code had good intentions, but as the old saying goes, that's what the road to hell is paved with. A recent decision of a Board of Inquiry shows just how far we've travelled down that road.
The case involved a disabled woman who uses a wheelchair. She made an appointment with a chiropractor whose office was not accessible by wheelchair. He offered her three alternatives: two doctors would carry her up the stairs, or he would treat her at her home, or he would borrow accessible premises from another chiropractor and treat her there. Not good enough, said the lady, and lodged a complaint with the Human Rights Commission. Almost seven years later, the decision has come down: the chiropractor is guilty of discrimination. He has to pay the lady $500 in damages and install a ramp in his building at a cost of almost $20,000.
Reading this decision reminds me of the Emperor's New Clothes: everyone seems either too embarrassed, too fearful or too politically correct to say what was so pathetically obvious.
For example, one recurrent theme is that the disabled are "seen both by themselves and by society as not the same as everyone else." Okay, I'll be the kid in the crowd who blurts out what everyone already knows: installing wheelchair ramps won't change this. People in wheelchairs will still be unmistakably different--they'll be the ones rolling up the ramps while other people will be walking. To make their differences genuinely unobservable, we'd have to pass a law compelling everyone to use wheelchairs.
A second theme in the judgment is that the disabled don't want charity or pity; they don't want to be dependent upon others. That's understandable--who does? But to pretend that this decision--or indeed, any application of the Human Rights Code--makes the disabled any less the recipients of charity or any more independent requires a prodigious feat of self-delusion. They may not be dependent on someone else to carry them up the stairs, but they are still dependent on someone else to build them a ramp. If the complainant had wanted to demonstrate true independence, she would have gone to the other chiropractor's office where someone had already installed wheelchair access voluntarily, instead of burdening a stranger with a $20,000 expense. Or she could have offered to pay for the ramp herself, rather than forcing an unwilling victim to provide it to her. The route she chose, of using the coercive power of a state agency to appropriate someone else's assets for her benefit, underscores the very dependency she is attempting to deny.
A third theme of the decision is dignity. We're told that the alternatives offered by the chiropractor offended the woman's dignity. One wonders what she and the Board of Inquiry expected him to do when initially confronted with the situation. Was he supposed to say, "Okay, just wait a few weeks while I get a zoning variance from the city, arrange a new mortgage, and spend $20,000 installing a ramp so that we can see whether you really want me as your chiropractor?" Most people who need chiropractic services need them now, not a few weeks from now. It made far more sense for the doctor to offer quick expedients than to offer to install a ramp. Even if he had proposed a ramp, the woman might well have sought treatment elsewhere in the meantime and might either have had her problem completely remedied or might have been so satisfied with the second chiropractor that she would never have come back to the first one.
In my view, the complainant's own behaviour robbed her of dignity. A dignified response would have been for her to realize that the doctor was trying to accommodate her and to have met him halfway. Instead, she insisted that everything be done entirely her way. That's not dignified--that's bullying.
The Human Rights Code says its purpose is to enhance the dignity of “every person," not just disabled people, but the decision--indeed, the whole proceeding--overlooks any consideration of the chiropractor's dignity. The judgment reveals details of his assets, his debts and his earnings over several years. There it all is, in black and white, for his colleagues, his patients, his neighbours, or any other nosy stranger to read. I'm sure he finds that very dignified. Even worse, his judgment as a businessman regarding the appropriate financial conduct of his business has been completely overridden. No doubt he would willingly have installed a ramp, in order to expand his potential client base, if he had perceived a reasonable prospect that the extra traffic would justify the expense. His opinion was that it wouldn't. The Board of Inquiry couldn't care less. He is the child, it is the parent, and he has to do what it says, regardless of how foolish its decision may be from a business point of view. I'm sure he finds that very dignified too.
One witness, quoted approvingly by the Board, described the proceedings this way: "It really is...about persons with disabilities taking control of their own lives." Not at all. It's really about the Human Rights Commission, in the name of a few legally privileged groups, taking control of other people's lives. More about this next month.
Part 2 - Calling a Slave a Slave
In my last column, (above, ed.) I wrote about the case of a London, Ontario chiropractor who was forced by the Human Rights Commission to install a$20,000 ramp at his clinic. The order was made after a wheelchair-bound woman complained that she could not get into the building to employ the doctor's services. She rejected his offer to treat her at home or at another accessible location, insisting that those alternatives would make her feel stigmatized and undignified.
The business and professional community in London--and indeed, all of Ontario--must be shaking in their boots. Every doctor, dentist, accountant, lawyer, restaurateur or merchant whose business premises are inaccessible to wheelchairs has to pray that this woman never decides to patronize his establishment, lest it cost him $20,000 for the favour.
Ontario's Human Rights Code divides the population into two classes who are given completely different treatment. The first group can be broadly described as consumers. They can't be discriminated against on the grounds of race, sex, handicap, etc., by anyone providing services, goods, facilities or accommodation. If they think they have been discriminated against, they can complain to the Human Rights Commission.
The second group can be broadly described as business people. They are the ones who provide the services, goods, facilities and accommodations, in exchange for money. The first group can freely discriminate against the second on every imaginable ground, because there is nothing in the Code that forbids discrimination in the provision of money.
So if a person in a wheelchair chooses to eat at an English-style pub rather than at the French, Jewish or Chinese restaurants (all ramped) in the same block, the snubbed restaurateurs can't go bleating to the Human Rights Commission about her cruel ethnic discrimination. Nor can any of the ethnic restaurateurs claim "systemic discrimination" if his restaurant fails while those of his neighbours succeed. The Human Rights Commission won't force the locals in the neighbourhood to eat their "fair share" of Chinese food. Business people simply have to live with the fact that in a market economy, consumers are free to deal with whomever they choose.
Here's another example. Clients occasionally tell me they picked my name out of the yellow pages because they wanted a female lawyer. Presumably, there are other people who choose not to hire me for precisely the same reason. Ontario's benchers endorsed this discriminatory practice last year by allowing the Lawyer Referral Service to fill gender-specific requests. A Law Society Committee was even asked to consider permitting clients to request a referral by race or ethnicity. But the Rules of Professional Conduct make it clear that lawyers cannot screen out clients on the basis of sex, race or ethnicity.
Why should there be any such dichotomy? Every commercial transaction consists of two parties making an exchange: goods, services, facilities or accommodation flow in one direction, and money flows in the other. Both parties to the transaction must feel that what they are getting is more valuable to them than what they are giving up; otherwise, they wouldn't agree to the deal. So why should one group be free to select the identity of the person they wish to profit from, while the other isn't? Don't get me wrong--I am certainly not advocating that the Human Rights Code should apply in both directions. On the contrary, I am suggesting that it should be scrapped, so that freedom of contract can prevail for all.
The only way to make sense of the dichotomy is to realize that the Code is not about protecting minorities against racism, sexism or other –isms at all. No, what it's really about is subjugating those classes of people who are presumed to be powerful to those who are presumed to be powerless. Business people and landlords of all races, sexes and abilities are the targets; consumers and tenants are the beneficiaries.
Of course, the presumptions about power are not particularly accurate. There are many consumers and tenants who are wealthier and more influential than business people and landlords. But little facts like this never bother those who want to dismantle the free-market system. The chiropractor decision contains the unspoken declaration that the doctor has some sort of obligation to provide services to the disabled woman, even though she is under no corresponding obligation to purchase his services. Interestingly, he has no general obligation to provide chiropractic services to the world. He can retire from practice and take his services off the market entirely if he chooses. But if he has no obligation to provide his services to anyone at all, then how can he have an obligation to provide services to the disabled woman in particular? What the Human Rights Code actually does is to impose a form of involuntary servitude on certain members of society--the goods and service providers. It transforms others--consumers who belong to one of the privileged minority groups--into overlords. The latter have the right to force the former to perform services for them against their will. There was a time when this was called "slavery," but it's unfashionable to call a slave a slave these days.
According to the preamble of the Ontario Human Rights Code, its purpose is to create "a climate of understanding and mutual respect." What it is bound to create instead is a climate of privilege and resentment.
Original Publication: Canadian Lawyer, September 1995 and October 1995