In a recent case before the Human Rights Tribunal of Ontario, Maclean v. The Barking Frog, (April 16, 2013), a man alleged that a bar had discriminated against him by charging him a higher entrance fee than women on ladies’ night.

The applicant, Maclean, went out one evening with his friends to The Barking Frog, a bar in London, Ontario.  Maclean claimed that upon arrival at the bar, he was told that the cover charge for men was $20, but that it was only $10 for women.  Maclean was offended, and decided not to pay.  He later brought a human rights application claiming that he had been discriminated against on the basis of sex, contrary to the Ontario Human Rights Code.

The bar owner denied that a differential cover charge had been sought, but conceded that the doorman may have offered Maclean and his friends a different price to jump the line.  But in any case, the Tribunal did not accept Maclean’s argument that by charging men more than women, the bar was perpetuating a belief in society that men are less worthy than women. Nor did the Tribunal accept Maclean’s position that the higher cover charge excluded men or made men feel unwelcome.

The adjudicator emphasized that the Code is aimed at achieving substantive equality, and that not all differential treatment is discriminatory and unlawful.

The decision confirms the principle that the Human Rights Code is aimed at achieving “substantive equality” and as a result, not all differential treatment is discriminatory. The language of the case is interesting:

“The attraction of more women into a bar is designed to increase overall attendance at the bar and the bar owner’s profit. This is apparently a successful business strategy that has been used by many in the business for many years. Far from operating to exclude or discourage men from entering a bar or to keep bars segregated between genders, one of the primary functions of a “ladies’ night” is to try to increase the attendance of men because of the presence of more women. I fail to see how this strategy can be seen as substantive discrimination in the overall societal context, in light of the privileged position that men hold in our society”.

The adjudicator dismissed the application has having no reasonable prospect of success.

Although it may be surprising that such an application was brought, it does give pause for thought.  The language of this last paragraph could be controversial.  While legally sound, the case reminds us that not all differential treatment is necessarily discriminatory and therefore unlawful.

Marie-Helene Mayer