Inequality and Identity at Work

Abstract

In a constitutional clinical course at the University of Calgary Faculty of Law in the winter of 2014, students worked with unions and workers’ rights groups to develop constitutional challenges to the exclusion of farm workers from labour and employment legislation in Alberta. After exploring arguments under sections 2(d), 7 and 15 of the Canadian Charter of Rights and Freedoms, the students concluded that, based on the existing jurisprudence, the equality rights arguments under section 15 were the weakest. This article explores what is lost when we fail to recognize the identity-based harms that flow from government violations of equality rights. It considers the nature of these harms, why they may be minimized or ignored, and the consequences of ignoring such harms. These issues are examined in the context of workers’ rights, and in particular those of farm workers, but the analysis is also relevant to broader contexts. The article concludes with some thoughts on how the Supreme Court of Canada’s approach to section 15 of the Charter should be modified in order to better capture identity-based harms.

Keywords: equality, workers' rights