What Makes Something Discriminatory?
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
What may be felt offensive by some within the social climate of current times may be significantly different than what was accepted without concern, or perhaps even what went unnoticed, in past times. It is also possible that what seemed completely innocuous just a few years ago is now a sensitive issue. As an example, and albeit appearing as a misuse of process and an unfortunate waste of resources, was the case of Doe v. A&W Canada, 2013 HRTO 1259 wherein legal proceedings were brought against the Canadian corporate entity of A&W restaurants. The allegations were framed as discrimination based on a variety of Human Rights Code, R.S.O. 1990, c. H.19 protected concerns including 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 stated:
 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 is socially acceptable today and what was socially acceptable yesterday is constantly on the change. To avoid the risk of potential Human Rights Code violations, businesses should carefully review all aspects of operations with a lookout for that which may present concerns for offensiveness and discrimination.