Human Rights & the Restaurant Industry in Canada

A number of restaurant chains have recently come under fire for their dress codes which require women to wear different attire than their male counterparts. Restaurants have faced a media (and legal) backlash as a result of these types of policies that may discriminate against women.

On International Women’s Day, the Ontario Human Rights Commission published a policy aimed at restaurants, specifically stating that “female employees should not be expected to meet more difficult requirements than male employees, and they should not be expected to dress in a sexualized way to attract clients.”[1]

These recent headlines provide just a few examples of how restaurants have found themselves on the receiving end of a human rights complaint and underscore the importance of understanding:

  1. how human rights law apply to the restaurant industry;
  1. your responsibilities (and potential liability), and
  1. best practices going forward.

Human rights

How do I know which laws apply to me?

The restaurant and hospitality industry is regulated at the provincial level which means provincial human rights legislation applies. While each provincial statute is different, many of the grounds of discrimination protected by these laws are similar across Canada.

What are my responsibilities under these human rights laws?

Discrimination means treating people differently based on their race, gender, physical ability/disability, religion, family status, or other protected ground. Restaurant owners, like other business owners, have a responsibility to ensure that goods and services are provided in a manner that is free from discrimination. You owe this responsibility not only to your customers – but also to your staff.

What is a “duty to accommodate”?

In order to fulfill this responsibility and respect the rights of all persons, you may have to make reasonable adjustments and provide alternative arrangements to certain individuals, so that they are not adversely affected on the basis of a protected ground. This responsibility is called your “duty to accommodate”.

For example, the Ontario Human Rights Commission recently awarded $12,000 to a complainant with obsessive-compulsive disorder, after a restaurant was found to have refused to accommodate his needs such as serving his water without a lemon or a straw.

In B.C., a father has lodged a complaint of discrimination based on family status against a restaurant for failing to provide a high chair for his child, alleging the restaurant had not met its duty to accommodate.

What if one of my staff engages in discriminatory conduct or fails to accommodate?

Remember, as employers, you may be held responsible for the discriminatory behaviour of your staff – even if your company policy provides otherwise. In any event, a complainant will likely name you, your business, and your restaurant in any complaint made to the provincial/territorial human rights regulatory body and these proceedings can become part of the public record.Human Rights

Best Practices

Human rights complaints be can be quite costly from a financial and brand perspective. These types of complaints have an uncanny way of going viral very quickly and picking up a lot of media attention – even if you are ultimately successful in front of an adjudicator. The financial burden and the reputational damage are both bad for business.

At this point, you are probably wondering – how can I protect myself and my business? When it comes to your responsibility under human rights laws, being proactive is key. Put in place proper systems and policies, that will better equip you to protect yourself, your business, and your customers. As a restaurant owner, you should ensure that:

  • the restaurant is accessible to all persons;
  • your staff is properly trained to be sensitive to human rights and the duty to accommodate;
  • company policies (such as the dress code) are compliant with human rights laws; and
  • you are promoting an inclusive culture, which underscores the importance of dignity, equality, and diversity.

Taking these proactive steps may prevent you from being in tomorrow’s headlines, and at the very least, they will get you on the right track to creating a discrimination and harassment free environment.

Chad Finkelstein is a partner at Dale & Lessmann LLP (www.dalelessmann.com) in Toronto and can be reached at cfinkelstein@dalelessmann.com and Twitter.com/@ChadFinkelstein.

Cassandra Da Re is an associate at Dale & Lessmann LLP in Toronto and can be reached at cdare@dalelessmann.com.

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[1] OHRC policy position on gender-specific dress, codes, http://www.ohrc.on.ca/en/ohrc-policy-position-gender-specific-dress-codes.

Author

Chad Finkelstein is a franchise lawyer at Dale & Lessmann LLP (www.dalelessmann.com) in Toronto and can be reached at cfinkelstein@dalelessmann.com or (416) 369-7883.