Recent Human Rights Tribunal Decision a Strong Warning to Employers

In Wickham v. Hong Shing Chinese Restaurant (2018 HRTO 500) (CANLII), the Human Rights Tribunal of Ontario found that the downtown Chinese restaurant must pay $10,000 to a patron who had been asked by its staff to pay for his food in advance.

The restaurant asked a group of four, who all identify as Black, to pay for their meals in advance, even though no one else in the restaurant was asked to do the same. The restaurant defended itself, explaining that it had such a policy to prevent dining and dashing. The Tribunal was not persuaded by the defence.

The Tribunal found that the respondent restaurant had subjected the complainant to discrimination under the Ontario Human Rights Code on the basis of place of race, colour, and ethnic origin.

Besides employment, housing, and contracts, the Ontario Human Rights Code also covers goods, services, and facilities. When selling goods or providing services to the public, an employer is responsible for ensuring that its staff treats everyone with respect.

While this case garnered considerable publicity for such a blatant act of racial discrimination, there are frequent instances of more subtle differential treatment that can leave people of colour feeling unwelcome.

This is a good reminder for employers that training for all staff is so important, not matter how few employees. An employer is vicariously liable for the actions of its employees while they are at work. But beyond learning what an employer’s responsibilities are under the Human Rights Code, there is an ever-growing demand for training that also educates staff on implicit bias.

The respondents felt that their actions were not motivated by racial bias, but one does not have to identify as a racist to discriminate. All of us harbour preconceptions about others. We may judge others based on their appearance, gender, or age without even realizing it.

There are many activities that are protected by the Human Rights Code that may not be on the radar of many employees. For example, customers with service animals cannot be turned away, even from establishments that serve food, and women cannot be discriminated against for breastfeeding.

It is an invaluable exercise for any employer to train its employees (and itself!) to recognize unconscious biases. It is not a matter of rooting out and terminating the closet racist on the payroll, but of recognizing together how we can all do better to confront the judgments we all make.

Starbucks recently addressed their own highly publicized incident of racial discrimination when employees in Philadelphia called the police on two black men who were seated, waiting for a friend before they ordered coffee. Starbucks moved quickly to arrange for racial sensitivity and unconscious bias training for 175,000 employees across the United States.

This Tribunal decision also delivers another important reminder for employers. Human Rights complaints cannot be swept under the rug. If a complaint is not responded to in a timely manner, the respondent can be noted in default and deemed to have accepted all the allegations made by the complainant.

The restaurant did not defend the complaint on time and did not participate in the hearing. The Tribunal generally requires that complaints be mediated first. In this case, it appears that didn’t happen. Mediations are private, and any agreement reached will usually include non-disclosure terms, prohibiting the details of the complaint and the settlement from being made public.

By not mediating and not appearing at the hearing, the respondents not only deprived themselves of the opportunity to limit the damage, but opened themselves up to considerable unwanted publicity.

Members of the public have access to free legal resources in Ontario, if they believe they have been discriminated against. The same is not true of employers or business owners.

As a business owner, if customers, clients, or employees come to you with any concerns that you believe may be related to a human rights ground, whether it’s maternity leave, terminating someone who often calls in sick, inappropriate jokes, or any other issue related to a Code ground, it is important to consult with a lawyer who specializes in human rights law as soon as the issue is raised.

But before that happens, every employer and business owner must first ensure that their training and policies are compliant with the Ontario Human Rights Code. A consultation with a human rights lawyer will provide you with the tools and guidance to ensure your employees feel safe and your customers leave happy.