Models of Equality
Formal equality assumes that equality is achieved if the law treats all
persons alike. However, when individuals or groups are not identically
situated (for example a black woman versus a white man), the formal
equality model tends to perpetuate discrimination and inequality,
because it cannot address real inequality in circumstances.
In fact, by
treating different individuals as equals despite unequal access to power
and resources, formal equality creates an illusion of equality while
allowing real economic, legal, political and social disparities to grow.
Formal Equality Example: Mortgage Loan
Two people apply for a mortgage
The first is a single mother who can only work part-time, contract
hours because she cannot afford full-time childcare. Although she works
part time, she has not been unemployed at any time during the past 8
years. If she is able to qualify for a mortgage, her monthly mortgage
payment will be less than her current market rent and she will then be
able to afford full-time child care and will then be able to get a
better paying full-time job, get a car, etc. She has a perfect rental
The second applicant is a single man with no children
who works full time. If he qualifies, he will also be able to pay less
for a mortgage than he does on rent.
They complete identical bank loan applications and the bank uses
identical criteria to evaluate each application. The applicants must
answer questions on the application regarding job security. When the
bank reviews the applications, the woman does not qualify because she is
a part-time contract employee. The single man does qualify and the woman
continues to be denied the benefits of home ownership.
Substantive (Real) Equality
Achieving substantive equality requires that the effects of laws,
policies, and practices, be examined to determine whether they are
Substantive equality requires that the roots of
inequality be identified, the goal of equality of opportunity be
established, and that a legal mechanism be established that will achieve
this goal in a principled way. "Substantive equality" (i.e. equality of
opportunity) is different from "equality of results" in that the
mechanism for achieving the goal involves removing the barriers
associated with the group's "special characteristics" rather than
securing an equal result.
Substantive equality provides no guarantee
that members of a particular group will achieve equality of results,
only that they will have the opportunity. In other words the role of
individual merit and initiative is not displaced.
Example: Mortgage Loan
Using the example above, imagine that the banks
mortgage loan application criteria accommodated the very real
differences in each of the applicant's lives. In order to obtain real
equality, the banks evaluation criteria would look at each applicant's
circumstances and consider the fact that even while the single mother
was employed on a part time basis, her rental and work records were
Moreover, while her employment was contractual, she was
consistently and steadily employed. The bank's criteria would recognize
that her priority, particularly because she had children to care for,
was to make sure she kept a roof over their heads.
A substantive equality approach to the bank's criteria would recognize
that the effect of identical treatment of women and men would result in
the exclusion of a large proportion of women from securing loans. This
approach allows us to reach this conclusion because it requires us to
understand women's material conditions including their marginalization
in the labour force, their primary role as unpaid caregivers, etc.
The goal of human rights legislation is to achieve substantive equality
 Day, S., and Brodsky, G., Women and the Equality Deficit: The Impact of Restructuring Canada's Social Programs, (March 1998), Chapter 2 "Women's Equality: The Normative Commitment". Available at: http://www.swc-cfc.gc.ca/pubs/ 0662267672 /index_e.html at p. 43
 See Factum of the Intervenor Canadian Council of Disabilities. Available at: http://www.ccdonline.ca/law-reform/Intervention/ andrews%20factum.htm at Part III Argument, par. 3.
 Ibid at p.1.
 Ibid at p.2, paras. 4, 6