By Laura Track, Human Rights Lawyer, June 15, 2020
Anti-Black Racism and Human Rights
Human rights complaints about race-based discrimination are notoriously hard to prove. Like all complaints, the complainant must show that there was a connection, or nexus, between their protected characteristic and the negative treatment they experienced. This is almost always the most difficult part of the case.
In complaints about race-based discrimination, the complainant must show that their race was a factor in the negative treatment. A complainant cannot succeed in a human rights complaint by simply saying that they were treated badly and their race must have been the reason for that treatment. There must be some evidence to establish that link.
Importantly, race need not be the only, or even the most important factor. If there is evidence that a person’s race was any part of the reason for the negative treatment – for example, for discipline at work, denial of a tenancy, getting fired, or being refused a service – then the connection will be established.
Human rights tribunals in Canada have expressed an understanding of how nuanced racism can be. Decision-makers have acknowledged that discrimination on the basis of race is usually subtle and will often have to be proven by inference, rather than by direct evidence. For example, in Mezghrani v. Canada Youth Orange Network (CYONI) (No. 2), 2006 BCHRT 60, the Tribunal explained:
… discrimination on the basis of race is frequently subtle. Direct evidence of racial discrimination is rarely available, and such discrimination must often be inferred from the conduct in issue … Given the progress in Canadian society [in the last 20 years], in which overt racism has become even less acceptable, it is likely that racial discrimination has become even more subtle. In many cases, the ‘subtle scent of racism’ may have become very hard to detect.
Where there is no direct evidence of discrimination, the question is whether an inference of racial discrimination is more probable than the respondent’s explanation for their actions. The Tribunal must take into account the nature of racial discrimination and the fact that it can be the product of learned attitudes and biases, which often operate on an unconscious level, when making this determination.
In a recent case, the Human Rights Tribunal of Ontario took into account one subtle form of anti-Black racism: the negative treatment of a Black person by a service-provider because of stereotypes about Black people being criminals. In that case, a Black woman was refused a rental car. After providing her driver’s license and credit card, she was asked to provide a second piece of photo identification. The customer service representative told her that they had had a lot of car thefts recently, which was why they needed the additional ID. Two white men who were also renting cars at the time were not asked for a second piece of ID. When the manager rejected the second piece of ID as insufficient, the woman became upset. The Tribunal found that racial stereotypes of the “angry Black person” were also likely at play in the heightened scrutiny of the woman.
In another recent case, the BC Human Rights Tribunal found that a Black man had experienced discrimination on the basis of his race during his employment with BC Corrections. He was subjected to racist slurs, stereotyped as lazy and “slow”, and singled out for criticism and heightened scrutiny. In that case, the Tribunal made a number of important points that may be relevant in future complaints of race-based discrimination:
- Racial discrimination can occur through stereotyping and overt prejudice or in more subconscious, subtle and subversive ways.
- One of the most obvious ways in which people experience racial discrimination is through stereotyping. Stereotyping is a process by which people use social categories such as race, colour, ethnic origin, place of origin, religion, etc. in acquiring, processing and recalling information about others. Stereotyping typically involves attributing the same characteristics to all members of a group, regardless of their individual differences. It is often based on misconceptions, incomplete information, and false generalizations.
- At the individual level, racism may be expressed in an overt manner but also through everyday behaviour that involves many small events in the interaction between people. This is often described as “everyday racism” and is often very subtle in nature. Despite being plain to the person experiencing it, everyday racism by itself may be so subtle as to be difficult to address through human rights complaints. However, at other times, where it falls within a social area covered by the Code, there may be circumstances where everyday racism, as part of a broader context, may be sufficient to be considered racial discrimination .
- Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture and with an appropriate understanding of how racial discrimination takes place, may lead to an inference that racial discrimination was a factor in the treatment an individual received.
- It is not necessary for language or comments related to race to be present in the interactions between the parties to demonstrate that racial discrimination has occurred.
- It is important to emphasize that racism in its more entrenched forms is often unconsciously applied and its operation is often unrecognized by even those practicing it. In addition, while Canada has made much progress, racism remains a reality. It should not be treated as aberrant behaviour or a set of deviant attitudes on the part of a deviant individual – a so-called “rotten apple” within the system. Failing to recognize the complex, subtle and systemic nature of racism impedes effective action against it.
To succeed in proving race-based discrimination, it is critical to demonstrate the unique and subtle nature of racism that may not be readily apparent to a decision-maker. As a result, the onus on a complainant may be greater in a racial discrimination case because they must provide the necessary context for a decision-maker to understand why certain conduct is discriminatory. Learning to recognize racial discrimination is the only way to achieve justice and progress.