A Foolish Assumption

There's nothing rational about discrimination

Writing in an op/ed column in the Globe and Mail, Tom Flanagan attempts to make the case that the Canadian Human Rights Commission is, essentially, obsolete and should be abolished.

In many ways, as Flanagan notes, Canada's Human Rights Commissions are largely responsible for their own current predicament -- that of a lack of public credibility:

"For the first time in a long time, human-rights commissions are on the defensive. The Harper government is taking away pay equity from the Canadian commission and University of Windsor law professor Richard Moon's report has recommended repeal of the commission's right to interfere with free speech.

Both federal and provincial commissions are suffering blowback from their unsuccessful attempts to muzzle media gadflies Mark Steyn and Ezra Levant. Mr. Levant, in particular, has declared a jihad against the commissions, drawing attention to the one-sided nature of the legislation under which they operate. For example, commissions pay expenses for complainants but not respondents; successful respondents cannot sue complainants to recover costs; commissions allow complaints for the same alleged offence to be lodged in multiple jurisdictions, amounting to double jeopardy."

There's certainly a case to made for this. The extremely self-destructive behaviour of many of the CHRC's investigators, including the one who was unscrupulous enough to hack the wireless internet connection of a private citizen, has made the CHRC extremely suspect in the eyes of many Canadian citizens.

The toll taken on the commissions by Levant alone has left the CHRC struggling to maintain its public sense of credibility.

But continuing Flanagan's analysis of the predicament confronting the CHRC hits an incredibly fatal flaw, when he attempts to analyze the phenomenon of discrimination -- with the CHRC is meant to combat -- in the same manner as would an economist:

"In a competitive market, discrimination is costly to the discriminator. An employer who refuses to hire workers because of race, religion or ethnicity restricts his own choices and imposes a disadvantage on his firm. Meanwhile, his competitors gain by being able to hire from a larger pool. The same logic applies to restaurateurs turning away potential customers, or landlords refusing to lease to people of particular categories. (I'll never forget the experience of owning rental property in the recession of the 1980s; I would have rented to Martians if they had showed up with a damage deposit.)

The argument applies no matter how rampant prejudice and discrimination may be. Those who discriminate impose burdens on themselves and confer advantages on their competitors. Competitive markets don't immediately abolish discriminatory practices, but they tend to erode them, not by trying to enlighten bigoted people, but by making discrimination unprofitable."

Flanagan overlooks two basic truths: one of economics, and one of discrimination.

Economics proceeds from the assumption that most people make rational choices. In any particular situation, they will make the decision that benefits them most fully -- or at least believes will benefit them the most.

Discrimination, meanwhile, is not rational. And although Flanagan's argument that discrimination is self-defeating and thus unsustainable in a competitive environment is an elegant argument, it overlooks the fact that discrimination has often taken place in some extremely competitive environments.

In Canada, few things have ever been as competitive as the sport of hockey. Yet the disadvantage of discriminating against the most talented or hard-working players on the basis of race or ethnicity has often proven to be a less-than-convincing incentive to not discriminate.

Canadian hockey offers numerous examples of this.

Perhaps the most little-known is the discrimination against the Winnipeg Falcons, the Canadian team that won the first Olympic Hockey Championship in 1920. The Falcons had won the Allan Cup as the champions of a league in Winnipeg staffed entirely by players of Icelandic descent. Players of Icelandic descent in Winnipeg had to start this league because other leagues wouldn't allow them to play because of their Icelandic heritage.

Their triumph at the Olympics -- which also won them a World Championship, as the World Championship was awarded to the winner of the Olympic tournament -- eventually won them a warm, if uncomfortable, welcome back in Winnipeg.

Players like Herb Carnegie -- who played excellently in training camps for the New York Rangers but were never allowed an opportunity to play for the club -- were discriminated against for the colour of their skin. Carnegie won MVP honours in the Quebec Provincial League in 1946, '47 and '48. The New York Rangers had won a Stanley Cup in 1940, but could have well won another with a player like Carnegie, whose skills were often considered comparable to those of Canadiens legend Jean Beliveau.

If discrimination could be defeated by the self-interested rationality of those who need top-caliber talents to excel in highly competitive environments, as Flanagan insists, one would have to imagine that such historical episodes never would have happened.

The truth is that there is nothing rational about discrimination. It's predicated on emotional responses to evident differences between people, and in cases of racism doesn't even necessarily rely on differently-coloured skin.

Discrimination proves to be one of those instances where the free market isn't enough to ensure justice for those involved.

Flanagan is eager to argue that cases wherein discrimination turns out to be profitable are so because of government interference in the free market:

"Government can use its coercive powers, however, to protect discriminatory practices in the private sector from being undermined by competition.

There is a long and dishonourable history of propping up discrimination in the private sector - refusing to enforce laws against violence (lynching), passing discriminatory legislation (Jim Crow laws in the American South) and authorizing business cartels (sports leagues) and labour cartels (trade unions). Satchel Paige would have been pitching against Babe Ruth if professional baseball had been a competitive industry.

Government, using its monopoly of coercion, imposes the costs of discrimination on its hapless targets. Think of the episodes in our history that make Canadians feel ashamed and for which our governments have been busy apologizing: disregard of aboriginal property rights; sending Indian children to residential schools; closing the doors to Jewish refugees; keeping out Chinese and Sikh immigrants; relocating the Japanese during the Second World War; interning Ukrainians during the First World War and Italians during the Second World War; eugenic sterilization of the mentally and physically handicapped.

Every one of these was an exercise of governmental power. Political majorities undoubtedly approved at the time, but public opinion did not relocate the Japanese or send Indian children to residential schools. Governmental authority did, backed up by the coercive monopoly of the state. Authorizing a government agency to stamp out discrimination in the private sector is truly setting the fox to guard the henhouse."

Yet the Winnipeg Falcons were the victim of discrimination within an amateur league, unprotected by government legislation, and that Carnegie actually excelled within a Quebec league that was.

As Flanagan notes, discrimination in the private sector may well be self-liquidating over time, as those who very much do disadvantage themselves by discriminating against those with valuable talents inevitably lose out.

But that does absolutely nothing for those being discriminated against today. That is where Human Rights Commissions come in handy, and that is a valuable role that they fill.

While few Canadians will pretend that Human Rights Commissions are perfect, fewer still would pretend that those imperfections couldn't be rectified with a program of reform, not abolition.




Other bloggers writing about this topic:

George Young - "World According to Flanagan (And Harper)"

Cracked Crystal Ball - "Tom Flanagan: It's All About Social Darwinism"