The Meaning of Equity By Gayle MacDonald Le prbent article offre un expose' sur Ia lash has taken many forms, political cor- advocates a rethinking of the concept of signification du mot N e'quite' dans le rectness is but one. What I mean by back- equality in law altogether. Her premise cadre des dispositions sur l'tgalite' lash is what William Ryan refers to as raises an interesting dilemma. How does contenues dans la Charte des droits et "blaming the victim." one resolve the inherent inconsistency liberte's. Les interprttations le'gales du For example, if a recession hits, then that may exist by claiming any concept of mot << tfgalith,en terrnesde similitude, de those hardest hit by economic downturns, equality norm? For example, the Aristote- difkrence et d'avantage, sont analystes the disabled, white women, aboriginal lian notion of absolute equality, that is, duns une perspective fgm'niste qui utilise women, women of colour, lesbians, sin- equality defined as "sameness," has le syst2mejudiciaire en (antqu'instrument gle parents and immigrants are blamed for dominated legal thinking. The problem d'tvolution sociale. monetary restrictions which have very with this concept is that it may not repre- little to do with them. We are, as the sent the lived experience of women. I The meaning of equity is fundamen- saying goes, "the last hired and the first define "lived experience" in a similar tally, I believe, about rights. The idea of fixed" when economic times get tough. fashion to Dorothy Smith (1987), as the equality on whichemploymentequityand Feminists need to examine ideas around reality of women's lives, a reality which pay equity rests, is about treating people equity to determine how to combat these often stands in contrast to patriarchal as- without discrimination. The right to be practises. Many articles in this journal sumptions, theories and hopes for wom- treated without discrimination is en- issue point to strategies on a variety of en's lives. trenched in our Charter of Rights and fronts within "the m~vement.'~ Basically, an equality of "sameness" Freedoms, section 15. That section claims The focus of this discussion, however, purports that women and men are to be that people should not be discriminated will primarily look towards definitions of treated equally [read the same] regardless against before and under the law on the equality in law, where discussions around of whether women and men have been basis of age, race, sex, religious or ethnic equity now (since the 1985 proclamation treated the same up to the point at which origin, physical or mental ability. I would of section 15) primarily involve Charter the equality standard is applied. No con- agree, as some recent legal cases have equality rights. Hopefully, thereader will sideration is given to the possibility that indicated, that discrimination on the basis be able to trace where we have "come treating people "the same" may yield un- of sexual orientation and marital status from" in ideas around equity, with some equal outcomes in a context of systemic are arguably similar enough to the desig- idea, perhaps, of where we are "going." inequality? nated grounds under section 15, to be It could initially appearthat being treated included in this list. Further, affirmative The Definition of Equality equally or the same is the goal of equality action programmes are protected under seekers: and has been so for a long time. subsection 2 of this provision. Recent writings by lawyers, sociolo- An example of this is the women's move- The reason I highlight Charter equality gists and professors of jurisprudence who ment's struggle for employment equity guarantees is that these provisions are are concerned with the impact of equality (Abella, 1984). But context is critical for legally enforceable in the public realm, decisions on women's lives include Eberts any definition. If the conditions of wom- and for many of us, section 15 represented (1985 and 1990), Miles (1985) and en's work are such that the "same" work a true beacon of hope in the search for MacKinnon (1982 and 1987). Eberts' done by women and men is treated differ- equality for all within Canadian social concern is that a guarantee of equality entially in pay rates, then clearly, the two structure. But despite the claim of those rights in law should not be treated by groups are not treated "eq~ally."~But detractors of employment equity legisla- women as an implicit understanding by would an absolute standard of equality tion (most often employers, rather than the judiciary or the legal system of the such as this work in all conditions? The 'stakeholders" ) who state that 'equity concept of equality. In other words, legis- answer is definitely not. For a rationale of legislation is not necessary, it is covered lating a legal equality guarantee may nei- absolute equality ignores the lived experi- by other legislation' or that 'employment ther ensure equality for women, nor may ence of some people's lives. For example, equity is about the needs of whi te women' it ensure a definition of equality accept- in circumstances where women's and and therefore can be dismissed, readers able to women. Eberts argues for a broad men'sresponsibilities differ significantly, need only be reminded that despite sec- interpretation of equality in law by the women, as a direct result, simply do not tion 15, and some would argue as a result judiciary to ensureequality ofresult. Miles have the same opportunities as do men in of it, there has been an unprecedented claims that the concept of equality appre- specific public, economic or political are- backlash to the concerns and the needs of ciated by the courts is based on an explicit nas. An absolute standard of equality the disadvantaged in Canada. This back- acceptance of the male norm and she would do little more than reinforce the 8 CANADIAN WOMAN STUDIESLES CAHIERS DE LA FEMME belief that equity somehow exists in the that there are some situations in which the upcoming season. All members of a team reality of women's lives. sexes should be treated differently, advo- are subject to the regulations of the On- cates of this position are reclaiming ma- tario Hockey Association. Justine was The illusion that women have achieved ternity leave for mothers and exploring denied on the basis that if she wanted to equality is almost as pervasive as the support systems for women breast-feed- play hockey, she should play with the reality of oppression (Brodsky and Day, ing at work. women's league. That league chd not af- 1989: 11). It could also be argued, however, that ford the challenge that her athletic ability giving women "special status" in law re- required. Blainey filed a complaint with Men and women are not equal, not in affirms prevailing notions that women the Ontario Human Rights Commission socio-economic status (Mies, 1986), not need protectionist policies in order to that the Ontario Hockey Association's in wage scales (McDermott, 1991),not in function in the 'public' world of men. In ruling was discriminatory. The case even- career opportunity nor advancement these instances, advocates claim that a tually reached the courts, which found in (Armstrong and Armstrong, 1983; Pask 'sex-neutral gender-specific' concept of her favour. She was 12 years old when the et al., 1985) and certainly not in the home equality could fill the desire for sameness, proceedings began, but by the time legal (Delphy, 1984;Luxton, 1- -1 proceedings were 1980; Luxton and terminated, she was Rosenberg, 1986). too old to play in the To treat "equals league. Although she equally and unequals eventually won, the .=: unequally," in the Ar- S result of the case did istotelian sense is nei- .-3 littleby the timeitwas ther accurate nor use- rendered. ful. It simply reinforces 3 Other principles in m the type of judgment .a, law have the same ef- b found in Bliss. Stella S fect. For example, the F Bliss was fired from her 2 "statute of limita- job because she was tions" in law applies pregnant and found she to the time period S within which legal was ineligible to col- * g lect either unemploy- 2 proceedings may be 3 .S ment insurance ben- 3 g, taken. Admittedly, efits (due to her preg- Q such a principle pre- nancy) or pregnancy 5 9: vents miscarriage of benefits (because she 2 g procedural justice; was unemployed). In ( g that is, there is alimit this case, the court re- I 2 to how long after an fused to invalidate a ;-0 incident one has to sector of the Unem- live with the threat of ployment Insurance mcuu 2 5 a law suit or criminal Act which set out dif- 2 3 prosecution. But this ferent rules for eligi- principle unevenly bility to unemployment insurance for and the need for differences when appro- impacts on women in cases of incest. women who had just given birth toachild. priate. For example, the situation cited Often a women reaches at least the age of Judicial reasoning such as this formed the above regarding maternity leave couldbe majority before she can report the crime. basis for the inclusion of thephrase"every argued simultaneously with a policy on A charge of sexual assault, however, if individual... has the right to the equal parenting leave forboth sexes. This would proceeded with as a summary conviction protection of the law and to equal benefits be consistent with the 'sex-neutral gen- offence, needs to be filed in a period of six under the law" in section 15 (Atcheson et der-specific' position, protecting women months after the alleged assault (C.C.Cs.