Lessard, Hester

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York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 49, Number 1 (Summer 2011) Article 6Book Review: Inclusive Equality: RelationalDimensions of Systemic Discrimination In Canada,by Colleen SheppardHester LessardFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljBook ReviewThis Book Review is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationLessard, Hester. "Book Review: Inclusive Equality: Relational Dimensions of Systemic Discrimination In Canada, by ColleenSheppard." Osgoode Hall Law Journal 49.1 (2011) : 159-165.http://digitalcommons.osgoode.yorku.ca/ohlj/vol49/iss1/6159Book ReviewINCLUSIVE EQUALITY: RELATIONAL DIMENSIONS OFSYSTEMIC DISCRIMINATION IN CANADA, by CotLeenSheppard 1HESTER LESSARD 2IF YOU ASKED AN EQUALITY ACTIVIST or critical scholar to describe the SupremeCourt of Canada's equality jurisprudence, the likely answer would be somethingalong the lines of "bewildering, contradictory, fractured, and despair-inducing."There have been moments of relief-for example, an auspicious beginning inAndrews v Law Society of British Columbia3 and a short-lived consensus withrespect to the doctrinal formulation of equality in Law v Canada (Minister ofEmployment and Immigration).4 Overall, however, the equality case law providesa complicated and difficult legacy. In Inclusive Equality, Professor ColleenSheppard does not set out to untangle or expose the doctrinal contradictions,although she does some of that along her way. Rather, her aim is optimisticallycreative: to articulate a new concept of equality-namely, inclusive equality-that synthesizes the key insights of constitutional equality and statutory anti-discrimination jurisprudence, incorporating revised methodological approachesand new theoretical commitments. Moreover, she elaborates how her conceptof inclusive equality can shift our gaze away from courtroom battles and canfacilitate efforts to instill equality norms by means other than litigation.Most would agree that the endorsement in our Canadian Charter of Rightsand Freedoms5 jurisprudence of substantive rather than formal equality is one of1. (Montreal: McGill-Queen's University Press, 2010) 256 pages.2. Professor, Faculty of Law, University of Victoria.3. [1989] 1 SCR 143.4. [1999] 1 SCR497.5. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982,c11.160 [2011149 OSGOODE HALL LAW JOURNALits most significant and positive achievements. The divisions and contradictionsalluded to above arise over the question of what substantive equality means andrequires in specific cases. Indeed, much critique is taken up with pointing outhow courts have failed to live up to their commitment to substantive equalityand with lamenting the return to formal equality analysis. Sheppard shares thoseviews but takes us back a step-not to formal equality and not to a rejection ofsubstantive equality but to a reconsideration of the latter's adequacy. She arguesthat the concept of substantive equality, in addition to offering too little guidanceto decision makers, falls short of grappling with the structures and processesthat reproduce inequalities. Hence, Sheppard identifies a need to build on ourjurisprudential foundations to devise a new, expanded concept of equality.Sheppard turns to this ambitious task quickly. The opening chapter ofInclusive Equality concerns statutory responses to discrimination and inequality.She starts by noting the historical background of pervasive inequalities that* became the subject of comprehensive statutory legal reform efforts in Canadaonly in the aftermath World War II. She does not provide a detailed historyof legal developments. Her focus, rather, is on major conceptual shifts in theunderstanding of inequalities. In particular, Shepard focuses on the shift fromviewing inequalities as consequences of natural forces beyond the reach of lawor beyond the responsibility of society or governments, to viewing them associally constructed-the products of relationships, attitudes, and practices. Thislatter realization, she emphasizes, poses immense challenges to law and policy.A sophisticated grasp of the relation between law and social change is necessary.Understanding is also required of the interplay between large-scale global factors,societal and institutional norms, and individual values, actions, and beliefs.Sheppard distills from our statutory anti-discrimination jurisprudenceimportant insights that arise from grappling with this challenge: the propositionthat discrimination is often the adverse effect of neutral rules and policies ratherthan the work of individual "bad apples"; the recognition of the phenomenon ofsystemic discrimination; the development of more complex, programmatic, andpreventive remedies; and the emergence of an understanding of the complicatedinterplay between overlapping and intersecting identities and social disadvantage.In giving this overview, Sheppard also renders more precise a key distinction forher delineation of inclusive equality-namely that between adverse effects andsystemic discrimination. She notes that courts too often equate the two, therebyfailing to give full play to the systemic dimension in diagnosing inequalities.Systemic discrimination encompasses both adverse and direct effects as wellBOOK REVIEWS 161as deeply rooted attitudes, cultural norms, practices, and processes. In sum,in the introductory chapter, Sheppard both identifies and clarifies valuableachievements in this area of Canadian law. In particular, she highlights anemphatically relational, socially-embedded understanding of inequality and aconceptual vocabulary-including the notions of adverse effects and systemicdiscrimination-to aid us in addressing specific inequalities.Chapter two similarly engages in a synthesizing and clarifying analysis, thistime with respect to constitutional equality jurisprudence. Sheppard highlightsthe positive achievements in this area, in particular the rejection of formalequality in favour of a substantive conception that focuses on adverse effectsand unequal outcomes rather than simply on differential treatment. She alsoexamines recurrent doctrinal problems that have undermined the effectivenessof the jurisprudence, namely a rigid, technical notion of equality's comparativeframework; an unresolved tension between equality narratives that focus on.group dimensions of disadvantage and those that focus on dimensions that takeindividual dignity-harms as their touchstone; and the failure to keep pace withshifting understandings of the nature and role of the state.Chapter two also provides us with the book's key contribution-its elaborationof the concept of inclusive equality. Sheppard argues that inclusive equality buildson the judicial commitment to substantive equality-articulated largely in termsof attention to unequal effects and outcomes-and adds to it a distinct focuson processes, both systemic and structural, of inclusion and exclusion in social,institutional, and political decision-making practices. This focus on processes andrelationships, Sheppard proposes, arises out of concepts of systemic discrimination-that, although present in our current jurisprudence, need to be given a moreexplicit and central role. Sheppard's conception of inclusive equality-with itssubstantive as well as procedural/relational dimensions-is particularly crucialto the task of crafting remedies and responses that are transformative rather thanmerely corrective. Such remedies and responses engage with those features of ourcurrent arrangements that reproduce and sustain inequalities over time.'Sheppard ends chapter two on a practical note, with a revision of currentequality doctrine that both simplifies and expands the existing framework inorder to reflect her conception of inclusive equality. The revision reconfigures thework that conceptions of substantive equality do in terms of two inquiries-the6. Nancy Fraser makes a similar point using the distinction between affirmative andtransformative remedies for injustice. Justice Interruptus: Critical Reflections on the"Postsocialist" Condition (New York: Routledge, 1997) ch 1.162 (20111/.9 OSGOODE HALL LAW JOURNALfirst* into types of harmful effects and the second into the degree of harm. A thirdinquiry adds the lens of inclusion and directs analysis at "exclusionary processesand structural/systemic dimensions of harm."7The third chapter takes up the methodological implications of Sheppard'sinclusive equality framework. Again, she synthesizes, reworks, and expands existingapproaches. She notes the jurisprudential commitment to contextualization butargues for a more nuanced methodology that engages fully with micro-, meso-,and macro-levels of contextual analysis. The micro-level of analysis makes spacefor the experiential knowledge of those claiming equality harms. Drawing onfeminist theory, Sheppard notes the difficult questions about voice, authenticity,and essentialism that attend reliance on experiential knowledge. She advises thatthese concerns can be countered by knowledge drawn from contextual analysisat the meso- and macro-levels. The meso-level of analysis looks at institutionalprocesses and social relations and is crucial to the remedial effectiveness of aninclusive equality analysis. Through such analysis, we gain understanding notsimply of the harms of inequality but of the ways in which it is reproduced overtime despite corrective measures aimed at outcomes and effects. The macro-leveldirects our gaze to larger structural and ideological features such as the shift inpolitical rationalities from welfare liberalism to neo-liberalism in the last decadesof the twentieth century. Examination of the macro-level aids our understandingof micro-level experiences and the seeming intractability of exclusionary meso-level processes. It also ensures that remedies take account of both the dangers andopportunities presented by larger historical and socio-economic changes.Chapters two and three provide us with a map for equality law that retoolsold concepts, methods, and achievements. The map also sharpens our sense ofwhy these past approaches are important and supplements them with a set ofadditional inquiries and new benchmarks targeted at exclusionary norms, socialrelations, and processes. The fourth chapter is a case study of sexual harassmentthat puts Sheppard's framework to work, reinforcing the more abstract andmethodological points made in the preceding chapters. Chapters five and sixdiscuss two theoretical commitments-conceptions of caring and principles ofdemocracy-that Sheppard argues should explicitly shape and inform equalityconcepts and anti-discrimination law. The chapter on caring draws on well-known feminist literature focused on normative and ethical dimensions ofrelations of care. The salience of this literature to theories of equality lies in itsillumination of the prcfoundly relational character of caring, its embrace of socialinterdependencies, and its sophistication in navigating the distinction between7. Supra note 1 at 63.BOOK REVIEWS 163caring relations that oppress and those that nurture growth and equality. 'Thusthis literature offers a set of useful tools and concepts for analyzing the relationaland systemic nature of inequalities and for crafting more positive, inclusiveprocesses and relationships. As well, a focus on caring encourages us to enlargeour horizons beyond the individual and beyond those that we resemble in orderto include distinctly different "others" in conceptions of our community.Chapter six envisions a role for democratic principles that is similar to therole of theories of caring. Sheppard notes that while debates on the meaning andimport of democracy are many and diverse, "the fundamental starting point"of democratic theory is "a normative acceptance of the basic idea of equality.8Sheppard relies centrally on Iris Marion Young's conception of "communicativedemocracy."9 Young's work focuses on institutional and political processesof deliberation and on the structural constraints that inhibit and prevent fullparticipation in democratic societies. 'Thus it provides a close fit with Sheppard'smain point that equality concepts need to expand to encompass more directattention to exclusionary processes at the meso-level of institutional and socialrelations and to systemic and structural impediments to equality. Indeed,Sheppard argues forcefully that democratic principles need to be extended intothe private sphere and that more democracy in workplaces, families, corporations,educational institutions, and other civil society associations generally producesmore equality. As in the case of theories of care, Sheppard is attuned to theproblems that democracy presents for equality. Here those problems take theform of formal and functional exclusions and of majoritarian denials of minorityviews and rights. In discussing mechanisms and approaches that can resolve theseproblems, Sheppard reinforces the point that by linking equality to democracy,equality becomes a more transformative concept. In short, a focus on democracydemands that we attend to decision-making processes and practices rather thansimply to adverse effects and substantive outcomes.Sheppard's vision of inclusive equality is ambitious in its reach. It requiresthe energy and will to restructure relations and practices that many of us viewas normal, unobjectionable, and even virtuous, as in the case of market relationspremised on self-interest. Sheppard concludes her book with a short chapter8. Ibidat 119.9. Inclusion and Democracy (Oxford: Oxford University Press, 2000) at 40. Although Younglocates her conception of democracy within the model of deliberative democracy, she prefersthe term communicative democracy because too often the term deliberation connotes "theprimacy of argument, dispassionateness, and order in communication," qualities that canexclude from participation persons from less privileged segments of society (ibid).164 (2011! /49 OSGOODE HALL LAW JOURNALthat identifies three dimensions that are crucial to the restructuring process. Thefirst is the reinforcement of the agency of equality claimants. The trajectory ofmuch equality analysis tends to foreground harm and victimization to the pointof reducing claimants to their injuries and foreclosing rather than enhancingdemocracy and self-government." Sheppard draws on Kathryn Abrams' notionof "partial agency," which respects the capacities for action and freedom ofindividuals while at the same time acknowledging structural aspects of theirsubordination.11 The second dimension is the promotion of solidarity, a featurethat flows logically from Sheppard's emphasis on caring and that is a focal pointin social movement activism around equality issues. The third dimension is therequirement that public responsibility for equality be sustained and embracedrather than diminished.Who is this book for and in what directions does it point? Inclusive Equality'snatural audience is equality activists both inside and outside of law, judges, andthe curious public, as well as teachers, scholars, and students in the fields of lawand socio-legal studies. The book is written in a clear, accessible style. Chartsand diagrams are used to summarize complex, multi-layered arguments. Wherelegal doctrine needs to be explained in order to make a practical or theoreticalpoint, it is done in a way that all can understand. Sheppard's development of theconcept of inclusive equality. is *carefully grounded in both jurisprudence andtheoretical literature. The conceptual, strategic, and doctrinal pieces fit together,and concerns are anticipated and explained. Inclusive Equality could easily formthe basis of a seminar in equality and anti-discrimination law. The chaptersare short and succinct. In a classroom, the chapters could be supplementedwith cases that illustrate the main points and theoretical readings that expandon the foundations of Sheppard's concept of inclusive equality. InclusiveEquality challenges both mainstream and critical orthodoxies-in particular,the assumption that substantive equality provides the best possible doctrinalrendering of legal equality norms. Finally, the book is not tightly tied to a specificmoment in the development of equality jurisprudence, thus avoiding the risk ofbecoming immediately dated.Inclusive Equality also provides a direction for strategic litigation and aframework for factum writing that is attentive to precedent while at the sametime marking out a path through some of the more exasperating and recurrent10. See Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton:Princeton University Press, f 995) at 27.11. "Sex Wars Redux: Agency and Coercion in Feminist Legal Theory" (1995) 95 Colum L Rev304.BOOK REVIEWS 165tensions in the jurisprudence. It pushes us to think more imaginatively and moreconcretely about remedies, drawing on our particular knowledge and experiencesat home and work. In addition, Inclusive Equality looks outside the courtroomand underlines the salience of localized institutional strategies to achievingequality, offering direct and helpful guidance on such efforts. Thus it is a usefuland inspiring resource for persons concerned with equity and equality issues inworkplaces, public and private institutions, and community organizations.Perhaps Inclusive Equality's most compelling feature is that it is such anoptimistic and hopeful book. It is animated by a commitment to justice, by abelief that inequalities are social artifacts that can be undone by social activism,and by a firm conviction that lawyers can assist in this broad transformative socialprocess. As such, it is a refreshing antidote to the tendency in legal academiccircles to allow case law to circumscribe our possibilities for achieving justice andequality in the wider fields of life and politics.

Book Review: Inclusive Equality: Relational Dimensions of Systemic Discrimination In Canada, by Colleen Sheppard

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Book Review: Inclusive Equality: Relational Dimensions of Systemic Discrimination In Canada, by Colleen Sheppard

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