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HUMAN RIGHTS Formal EqualityFormal 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. [17] 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. [18] Formal Equality Example: Mortgage Loan Two people apply for a mortgage loan. 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 payment record. 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) EqualityAchieving substantive equality requires that the effects of laws, policies, and practices, be examined to determine whether they are discriminatory.[19] 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.[20] Substantive Equality 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 perfect. 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 for all. [17] 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 [18] 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. [19] Ibid at p.1. [20] Ibid at p.2, paras. 4, 6
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Download this content (RTF 88KB) This content is from: Human Rights in Housing in Canada: An Advocate's Guide
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