The recent Ontario Human Rights Tribunal decision of Wickham v Hong Shing Chinese Restaurant 2018 HRTO 500 provides some important reminders on employer liability for racial profiling.

The adjudicator found that the Applicant and his three friends were racially profiled when they were asked to pre-pay for their meal at a sit-down Chinese food restaurant. The Applicant is a 31 year old male who identifies as Black. He was born in Trinidad and Tobago and immigrated to Canada eleven years ago. At the time of the incident, he was a student at York University pursuing a sociology degree. Each of the friends he was with on the night of the incident also identified as Black.

The restaurant initially responded to the complaint by citing a policy that if they did not know a patron as a regular customer than they would ask the patron to pre-pay. The restaurant then failed to participate any further in the proceedings and the hearing went forward without any oral evidence from the restaurant.

The adjudicator accepted that the Applicant and his friends were the only Black people in the restaurant and that they were the only people in the restaurant that were asked to pre-pay. In requesting that the Applicant and his friends pre-pay for their meals, the adjudicator found that the restaurant had made a presumption that, based on their race, they were more likely to “dine and dash”. The Applicant was awarded $10,000 in damages for injury to the Applicant’s dignity, feelings, and self-respect.

In reaching this conclusion, the adjudicator provided a helpful overview of the principles of racial discrimination and racial profiling more specifically. Some helpful take-aways and reminders from the case are:

1. Technology is going to play an increasingly important role as evidence in human rights cases

The Applicant and his friends had one of the restaurant staff members take a photo of them on a cell phone right after they had pre-paid for their meal. The picture shows the four of them with two small change trays in front of them, and shows some of the other tables in the restaurant as well. This photo was entered as an exhibit in the proceeding and is referred to several times throughout the decision. While the decision does not turn on the photograph, it no doubt worked to bolster the credibility of the Applicant and the witnesses.

2. Shaw v Phipps and Peel Law Association v Pieters remain the leading cases on racial discrimination in Ontario

The HRTO continues to rely on the decisions of Shaw v Phipps 2010 ONSC 3884 and Peel Law Association v Pieters 2013 ONCA 396 when articulating the legal test and principles for proving racial discrimination. Reviewing these two decisions always provides helpful reminders on the principles of discrimination. In this case, the adjudicator emphasized the principle that racial discrimination often manifests itself in subtle ways, based on prevailing stereotypes about a group of people.

3. Racial profiling is not limited to encounters with police

Racial profiling is often linked in the media with the act of policing, however this decision provides an important reminder that it is in no way limited to this setting. In addressing remedy, the adjudicator reviewed previous awards in racial profiling cases. As she articulates, “these awards make it clear that racial profiling does not just occur in the context of policing, but in a variety of fora”, including the goods and services industry.

4. The absence of an explanation of the conduct can be evidence of discrimination

The Respondent failed to provide an explanation for its conduct on multiple occasions. First, on the night of the incident, when confronted by the Applicant, both the restaurant server and his supervisor were unable to provide a credible, non-discriminatory explanation as to why the Applicant was asked to pre-pay for his meal and they were noted as being “dismissive” to the Applicant’s request for an explanation. Second, the Respondent restaurant chose not to attend the hearing or participate in any meaningful way. This multi-pronged failure to explain the conduct in question was relied upon as evidence of discrimination by the adjudicator.

5. Employers can be found both vicariously and directly liable for discrimination

The adjudicator confirmed that per section 46.3 of the Human Rights Code, the acts or omissions of the restaurant’s waiter and supervisor the night of the incident fell within the restaurant’s liability. On top of this, the adjudicator found that the supervisor’s enforcement of the pre-payment policy and the restaurant’s failure to provide any explanation for the conduct during the proceeding were indications of the organization’s racist conduct. The adjudicator was clear that the restaurant was being held directly liable and vicariously liable, stating: “these acts were not just the acts of rogue employees”.

6. Factors that can come into play when addressing damages

The adjudicator awarded the Applicant $10,000 in damages. As the adjudicator pointed out in the decision, typically awards for addressing racism in the context of goods and services have ranged between $2,000 and $20,000, placing her award squarely in the mid-range. In reaching this amount, the adjudicator emphasized the very public nature of the incident of discrimination. When the Applicant found out he and his friends were being asked to pre-pay for their meals, he went around to the other patrons to ask if they were required to do the same. As the adjudicator noted, this meant that the entire restaurant knew what had happened to him.

The adjudicator also highlighted the fact that this was the Applicant’s first time experiencing discrimination. As the Applicant explained, prior to coming to Canada, he was not accustomed to “being treated like a second class citizen because of his race”, as such, this incident represented a “significant turning point” in the Applicant’s life.

Wickham v Hong Shing Chinese Restaurant should be taken as an important reminder that racial profiling can exist in any industry. Policies that are not applied equally may rise to the level of discrimination. Employers should take heed of this decision and scrutinize the rationales behind formal or informal workplace policies and processes. If policies do exist that treat some groups differently than others, either on their face or in their impact, then employers need to think carefully about whether there is a valid, non-discriminatory basis for them.

This decision also provides an important lesson for those of us investigating allegations of discrimination. We cannot operate in a vacuum. Context is extremely important, especially when, as the adjudicator stated, “anti-Black racism often manifests itself in subtle ways”. As investigators, we must be aware of cultural and racial stereotypes and biases, and be prepared to ask the hard questions that will expose them.

About the author Lawyer Katharine Montpetit conducts a diverse range of workplace investigations, including complaints of sexual harassment, abuse, and other forms of misconduct. She is also available to help organizations proactively identify and curb dysfunction through workplace assessments and reviews. Katharine also provides workplace investigation and human rights training to staff at all levels.