Léa Brière-Godbout

Speaking from (Dis)empowerment? The Difference between Reverse and Collateral Discrimination

Introduction

Speaking from (dis)empowerment? the difference between reverse and collateral discrimination. Explore the crucial difference between reverse and collateral discrimination. This article argues collateral claims merit recognition as they stem from disempowerment. Analyzes Canadian Supreme Court Section 15 case law.

Abstract

Globally, we are seeing the rise of a trend where members of empowered groups claim being the victims of discrimination. These claims force us to ponder—who is (and should be) eligible for legal protection against discrimination? The debates they spark often take a binary form, with commentators arguing either that reverse discrimination is “the same” as paradigmatic discrimination or that it simply does not exist. In this article, I develop an alternative path by distinguishing between “collateral discrimination” and “reverse discrimination.” I argue that the collateral discrimination cases merit recognition as discrimination because, in these cases, empowered claimants are refusing to endorse certain dominant roles or attitudes. Thus, despite being part of generally empowered groups, these claimants are speaking from a limited place of disempowerment. On the contrary, claimants in true reverse discrimination cases speak from a place of empowerment, and, as such, their claims should be dismissed under discrimination frameworks. In this article, I describe three pathways through which collateral discrimination operates (mis-grouping, anti-association, and role enforcement) and reconstruct the Supreme Court of Canada’s case law on Section 15 featuring empowered plaintiffs using this model.

Review

This article tackles a highly pertinent and increasingly visible societal and legal issue: claims of discrimination by members of traditionally empowered groups. It astutely identifies the reductive binary nature of current debates surrounding "reverse discrimination" and proposes a novel conceptual framework to navigate this complexity. The core contribution, the distinction between "collateral discrimination" and "reverse discrimination," appears to offer a promising analytical tool to move beyond stale arguments and re-evaluate eligibility for legal protection in a nuanced manner. This timely intervention is significant for both legal scholarship and anti-discrimination advocacy, providing a much-needed framework to address contemporary challenges. The proposed distinction is compelling, particularly the framework that anchors claims in whether the claimant is "speaking from (dis)empowerment." The assertion that "collateral discrimination" merits recognition because it arises from a refusal to endorse dominant roles, thereby indicating a *limited* disempowerment, provides a sophisticated lens through which to assess such claims. Conversely, the argument for dismissing "true reverse discrimination" claims, as they stem from a position of empowerment, offers a clear theoretical basis for differentiation. The article's commitment to describing three specific pathways (mis-grouping, anti-association, and role enforcement) and its application to the Supreme Court of Canada’s Section 15 jurisprudence indicate a robust and empirically grounded methodology, demonstrating the practical utility and analytical power of the new model. While highly insightful, a potential area for further development, not explicitly detailed in the abstract, lies in the precise operationalization of "limited disempowerment" for "collateral discrimination" claims in practical legal contexts. Defining the boundaries between refusing a dominant role and simply experiencing an inconvenience might prove challenging, requiring careful articulation to prevent the framework from being misapplied or misused. Nonetheless, this article promises a vital contribution to discrimination theory, offering a more precise and ethically grounded vocabulary for understanding and adjudicating claims from empowered groups. Its potential to reshape legal and public discourse around these sensitive issues is substantial, making it a valuable addition to the field.

Full Text

Comments

You need to be logged in to post a comment.