Is What Can Be Discriminatory Changing?
What Is Sensitive and May Be Felt Discriminatory Is Constantly Changing. The Goal of Anti-Discrimination Law Is to Encourage Understanding With Mutual Respect For the Dignity and Worth of Each Person So to Enable a Sense of Welcome Within Society.
A Helpful Guide On How to Determine What May Constitute As Discrimination In Our Ever Evolving Social Climate
Within the social climate of current times, what may be felt offensive by some may be significantly different than what was previously accepted without concern or what perhaps even what went unnoticed. Essentially, what just a few years ago would be viewed as completely innocuous may now be a sensitive issue. For example, and although deemed as an abuse of process and thus an unfortunate waste of resources, was the case of Doe v. A&W Canada, 2013 HRTO 1259 wherein a proceeding was initiated against the corpoate entity for A&W restaurants in Canada. Within the matter, discrimination allegations were framed as based upon a variety of Human Rights Code, R.S.O. 1990, c. H.19 protected concerns relating to sexual orientation, gender identity, gender expression, age, marital status, and family status, for failing to represent non-conventional families and individuals within family oriented menu options. Specifically, the allegations were:
 The Application alleges discrimination with respect to goods, services and facilities because of sex, sexual orientation, gender identity, gender expression, family status and marital status contrary to s. 1 of the Human Rights Code, R.S.O, 1990, c. H.19, as amended (the “Code”). The narrative describes the allegations and their effect as follows:
On May 31, 2013, I attended the Cornwall Square Mall and ordered a hamburger meal from the A&W in the foodcourt. It was my first time ordering from a fast food establishment of that sort. I noticed that the hamburger meals were given names of various family members (e.g. “Mama Burger”, “Teen Burger”, “Grampa Burger”, etc.) The sizes of the hamburgers increased with maleness and seniority in the heteronormative family (i.e. Papa Burger bigger than Mama or Teen burger… etc.). I wanted a light burger so I ordered the “Mama Burger” meal.
As a lesbian feminist, the whole notion of labelling a burger patron as a “Mama” or “Papa” or “Teen” based solely on the choice of meal is highly degrading and an attack on my womyn identity. The level of humiliation and degradation I felt exceeded that which I felt when I was raped. The whole heteronormative, phallocentric marketing scheme of A&W is highly degrading to non-traditional families, especially members of the LGBTQ2S community. Since that visit, I have found myself isolating and I have started doubting my own self-worth.
Although the case was dismissed and deemed an abuse of process for various reasons, and it does appear that the Application to the Human Rights Tribunal of Ontario was initially submitted as a disrespectful and mischievous prank, the case does raise the concern that certain sensitivities may now exist and potentially pose legal risks; even if those legal risks are only the cost to defend such an allegation.
Whereas sensitivities are constantly evolving and changing the social climate as to what is appropriate and what is inappropriate, careful review of all aspects of business operations is justified in the effort to minimize the risk of a human rights claim. It is important to recognize what may be offensive to some people and to make adjustments accordingly whereas both the cost of, even successfully, defending a human rights proceeding is significant as is also the cost of harm to the business reputation and the public goodwill.
What was socially acceptable yesterday may be socially unacceptable today as sensitivities are constantly changing. To help reduce the risk of discrimination allegations as Human Rights Code violations, a business should implement regular review of various operational activities and messages with a keen eye watching for concerns that may present as offensive and discriminatory to some people.