Guest Column by Chris Schafer

Now that Tim Hudak, leader of Ontario’s Progressive Conservative Party, has backtracked on his plan to scrap the province’s Human Rights Tribunal if elected, the focus of debate has turned to reform. However, piecemeal reform, no matter how overdue and necessary, will not cure what ails the human rights system. Nothing short of abolishment will suffice. Here’s why:

What Ontario’s “human rights” advocates fail to heed is that discrimination ought to be universally available to everyone. It is a natural part of individual behaviour. We discriminate every day in the food we eat, the music we listen to, and the friends we keep. In fact, the right of individuals to make choices, or in other words discriminate, is a fundamental aspect of a free society, tied to such genuine rights as freedom of association and contractual freedom.

However, in Ontario only certain categories of individuals – categories that legislators have presumed are economically less powerful, such as tenants, employees, and consumers – are free to discriminate. This group is free to hold prejudices and discriminate however they please when deciding from whom to rent, for whom to work, or from whom to purchase goods and services. On the other hand, landlords, employers, and service providers – groups presumed to be more powerful – cannot discriminate freely among tenants, employees or customers.

The main objection to the argument for the universal freedom to discriminate arises from concerns about majorities passing laws to exploit minorities, such as the infamous “Jim Crow” laws in the U.S. that (among other things) restricted blacks to the backs of buses. However, a significant difference exists between discrimination by individuals and discrimination codified in state law. The state can use its coercive power to force compliance by minorities, whereas criminal law does not condone the use of force by individuals to enforce their discriminatory preferences.

In a truly free society, where no Jim Crow-style laws compelled businesses to engage in discrimination, there would be economic incentives for even the most recalcitrant bigot to reconsider his prejudices. Discriminatory behaviour comes with a price tag, since it reduces the bigot’s range of options with respect to both suppliers and customers.

In a competitive free market, employers for example, must continually seek ways in which to outdo their competitors. A failure to respond to changes in the marketplace increases the chances of going out of business. An employer who decided to hire on a discriminatory basis instead of on capability to do a job, would be hindering his own competitiveness by passing up some of the best candidates. He would not be able to continue to do so for long because operating under the competitive disadvantage of discrimination would confer an advantage on competitors. Even if a large percentage of employers started out as bigots, competitive pressures would eventually reduce this percentage as they became compelled to either drop their bigoted hiring practices or go out of business.

For example, employers who decided to discriminate and not hire or under-pay otherwise qualified white males, would create a sizable pool of underemployed and underpaid white men. Other non-discriminatory employers could hire (even at a salary only slightly above what the discriminatory employers offered) and reap a profit. Eventually, other employers, including those discriminatory employers for whom the lost profit is too high a cost in relation to their preference to discriminate, would seek to hire the low-paid white male employees, effectively driving up the wages of white males and returning to an employment rate and salary level for this group that existed prior to discrimination.

Thus, despite discrimination, the free market offers the best way to improve the lot of those discriminated against. Discrimination enshrined in law, like U.S. law that kept blacks at the back of buses, provides no such route to improvement because the discriminatory majority does not have to bear the costs of their action, as it would have to in the private sector. This is because government ministries and departments do not go out of business for failing to respond to competitive pressures; they always have a pool of taxpayer money from which to draw.

What visible minorities, gays, and other enumerated groups under Ontario’s “human rights” system must come to see is that what they are now doing through the Tribunal is the same thing that was once wrongly done to them. They are using the coercive power of the state for private purposes; to compel people to serve them, to forbid individuals from expressing their opinion, etc. However, if history has taught us one lesson, it is that a government that is powerful enough to outlaw discrimination by individuals is also a government powerful enough to compel discrimination when the public mood of the majority changes. This is why Ontario’s human rights system must be abolished.

Chris Schafer is the Executive Director of the Canadian Constitution Foundation (www.theccf.ca). This article originally appeared in The Lawyer’s Weekly, and is reprinted here with permission from the author.