Labor & Employment Law

Customer Preference and Human Rights

By Michael Fitzgibbon

Customer preferences issues are sometimes raised in human rights cases and this is what took place in the recent case. The complainant alleged  discrimination on the basis of disability (including perceived disability), association and marital status. Specifically, she claimed that she was discharged because her boyfriend was HIV positive. 

Though the Tribunal found that the complainant had offered to share a portion of the damages she received from the Tribunal with a witness in return for the witness providing "false evidence at the Tribunal hearing", that ?this to be a serious abuse of the Tribunal?s process? and her evidence was discounted, it, nonetheless found in her favour on the merits. 

In reaching this conclusion, the Tribunal considered the so-called customer preference cases.  The Tribunal summarized the law as follows:

Based in large part on human rights statutes enacted in the 1960s, courts and tribunals have consistently held that it is no defence to a claim of discrimination that customers prefer not to be served by an individual identified by race, gender, disability or any other ground prescribed in the Code.  Subject to a specific exemption in the Code, a business owner is not entitled to set qualifications for a job based on the preference of customers.  A business owner is not entitled to terminate an employee because they feel that business will suffer because of the views of customers, where those views are related to proscribed grounds of discrimination. (See: Berry v. Manor Inn (1980), 1 C.H.R.R. D/152 (N.S. Bd. Inq.); Imberto v. Vic and Tony Coiffure (1982), 2 C.H.R.R. D/392 (Ont. Bd. Inq.); Hajla v. Nestoras and Welland Plaza Restaurant (1987), 8 C.H.R.R. D/3879 (Ont. Bd. Inq.): Varma v. GB Allright Enterprises Inc. (1988) 9 C.H.R.R. D/5290 (B.C.H.R.C.); Mohammad v. Mariposa Stores Ltd. (1990), 14 C.H.R.R. D/215 (B.C.C.H.R.))

In other words, according to the Halja case, ?one cannot break the law because another person wants or encourages the transgressor to do so.?

The Tribunal decided not to make any individual remedial orders in favour of the complainant personal, in spite of the complaint being allowed.  The Tribunal reasoned that it had a broad discretion with respect to remedies and that this was a unique case where abuse of process had been shown.  The Tribunal ordered the respondent to make a charitable donation to ?organization identified by the Commission that provides services to people living with HIV/AIDS in [the area], or that undertakes public outreach or education in respect of HIV/AIDS issues?

This is truly a unique case, and I merely reference it because of the important discussion of ?customer preferences? in a human rights context.

Full post as published by Thoughts from a Management Lawyer on January 28, 2008 (boomark / email).