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Is It Fair to Discriminate During the Pandemic?

We should respect individual rights regardless of the colour or creed of the individual. Ditto for respecting the rights of the elderly or the disabled.

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Leah Goldstein

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The small retailer held up a cardboard sign with a half-smile on his face. “No Elderly or Customers with Pre-existing Conditions” it read. His smile broadened, but somehow turned serious. “Is this legal?” he asked. “Because I don’t want to be responsible for killing anybody.”

As the virus cuts a swath through the population in the most discriminatory way, targeting the aged, the ultra-Orthodox Jewish community and the disabled with particular vigour, the legal and moral dilemmas are just beginning. Are we allowed to discriminate in order to protect? Can the government mandate that seniors in long term care residences be effectively imprisoned, with all visitors including family denied, until herd immunity is reached? Can we force vulnerable people in our employ to work from home even after our offices are allowed to reopen?

This year the discrimination issue will be hitting Ontario lawyers with particular force. After a bruising three year battle within the Law Society of Ontario over a proposed “Statement of Principles” regarding discrimination, the Society ultimately compromised by requiring all Ontario lawyers to check off a box on their mandatory annual returns, due in the next six weeks. The box, which if left unchecked will result in the yanking of a lawyer’s license, obligates the lawyer “to respect the requirements of human rights laws in Ontario and to honour the obligation not to discriminate.” It’s the phrase “obligation not to discriminate” that intrigues.

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Presumably the Law Society is urging lawyers to honour a moral code that goes beyond the basic legal obligations that every Ontario resident must obey. Why else bother with the statement? But the statement also implies that there is widespread agreement within society of such moral obligations. Surely, the Law Society seems to imply, as a country, Canada has made it clear that all forms of discrimination are repugnant. Every right thinking, educated, enlightened professional will agree, so the Law Society posits, that we should respect individual rights regardless of the colour or creed of the individual. Ditto for respecting the rights of the elderly or the disabled.

Which brings us back to question that my retailer asked. We wish to respect the rights of the elderly but we also, as a society, feel an extra obligation to protect them. Is limiting access to a business a form of prejudice? Or an act of compassion?

Goldstein and another trainee at the training camp

Ontario’s large retailers and banks have answered this question by flipping it around. Special “Seniors Only” hours abound at supermarkets and local branches of national banks. So far no one has challenged the legality of what is in effect reverse discrimination. One wonders what the Law Society would make of this. Are we honouring our obligation not to discriminate if we discriminate in favour of the vulnerable (see affirmative action)? If a lawyer is approached by a litigant who wishes to challenge this retail policy, would said lawyer be violating the obligation he checked off by taking the case? Or would he be violating it by refusing the case?

The dilemmas will soon be piercing our religious institutions as well. A president of a large synagogue will have to decide if a “Seniors Only” minyan should be instituted. If so, should seniors be given any honours at the regular non-Senior minyan? By honouring a senior at a regular minyan are we encouraging seniors to engage in dangerous behaviour? Conversely, if we refuse to allow such honours are we not discriminating against the elderly in the most direct fashion?

 The Shelter in Place orders that have swept the world confront this question more broadly: What is our collective responsibility towards the vulnerable? Are we, as a society, obligated to discriminate in favour of the vulnerable? When the vulnerable number in the tiny percentages, it seems that our answer is generally: Yes. For example, virtually no one argues that society should not, as a matter of moral policy, support the severely disabled. (Whether the support is sufficient in any given society is an entirely different question, and may highlight the difference between what we say we should support, and how seriously we mean the statement). But does that remain our answer if we must mandate that the entire economy be largely shuttered in order to ensure that as small a number of the vulnerable end up dying?

It seems that the culture of each society will end up deciding that question. In the US it involves a raging debate, street protests and highly partisan internet rants. In Ontario the culture thus far seems to be that as long as the government provides assistance to the businesses that have been negatively impacted, then: Yes, save the vulnerable.

For me, I appreciate the approach that Israel endorsed at the start of this virus. Rather than framing the debate as them (the vulnerable) and us (the less at risk), the country embraced everyone as being in the same family. Save the grandmother, they urged. The discrimination dilemmas will remain, but our empathy in deciding them will be far higher.

Haskell Nussbaum holds degrees in physics and law, the latter from the Hebrew University of Jerusalem. He served as a judicial clerk to a Justice of the Supreme Court of Israel and served in the Golani Infantry Brigade of the Israel Defense Forces. He is also the author of 101 Ways To Help Israel, and has contributed articles to the Jerusalem Post, Jerusalem Report, National Post, Moment, the Jewish Week, HaModia and others. He has been interviewed in (or on) Fox and Friends, NPR, CBS News, USA Today and New York Magazine

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Thank you for choosing TheJ.Ca as your source for Canadian Jewish News.

We do news differently!

Our positioning as a Zionist News Media platform sets us apart from the rest. While other Canadian Jewish media are advocating increasingly biased progressive political and social agendas, TheJ.Ca is providing more and more readers with a welcome alternative and an ideological home.

We revealed the incursion of anti-Israel progressive elements such as IfNotNow into our communities. We have exposed the distorted hateful agenda of the “progressive” left political radicals who brought Linda Sarsour to our cities, and we were first to report on many disturbing incidents of Nazi-based hate towards Jews across Canada.

But we can’t do it alone. We need your HELP!

Our ability to thrive and grow in 2020 and beyond depends on the generosity of committed readers and supporters like you.

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