Servers claim discrimination at Vancouver nightclub
In the spring of 2019, two Caucasian people were hired to work as servers at a new nightclub in Vancouver. The focus of the nightclub was to attract high-spending Asian clientele. The original team of servers was made up of a fairly diverse crew, including some Asian servers. The problem was nobody spoke Chinese.
A few months later it was clear that their business goals were not being achieved. They were not attracting the clientele they wanted. They hired a consultant who spent some time talking to some of their existing clients. Ultimately, it was recommended that the nightclub hire some Chinese-speaking servers. When the first one was hired they had little serving experience and there were some performance issues. Notwithstanding that fact the Chinese-speaking server (who was Chinese) was paid a higher hourly rate.
The standing orders were that if things were slow at the nightclub, the server who spoke Chinese was to be sent home last. That meant the other servers were sent home first and they started to see their hours reduced. When a second Chinese server who spoke the language was hired, things got worse.
Eventually two of the Caucasian servers filed complaints with the Human Rights Tribunal claiming that they were suffering discrimination because of their race. They did this while still working there. Of course everything shut down in March 2020 when the pandemic began. Everyone was laid off with stop-and-start recalls beginning in June 2020.
The two Caucasian workers who filed human rights complaints were never called back. They filed a second complaint claiming that they were suffering reprisal for having filed the first human rights complaint and that they had not been called back to work when others had, including the Chinese-speaking servers.
The adjudicator at the Human Rights Tribunal did find that the two workers had suffered as a result of the servers who spoke Chinese being hired. The adjudicator did not find, however, that they suffered because of being Caucasian. It was found that they suffered because they did not speak Chinese.
The adjudicator accepted that, given the clientele the nightclub was trying to attract, it had bona fide business reasons for hiring Chinese-speaking servers. The complaint was dismissed. The fact that they had filed a complaint was unrelated to them not being recalled.
Human rights legislation prohibits discrimination based on a number of grounds, including age, sex, colour, creed, religion and gender. It does not prohibit discrimination on the basis of language skills.
In many jobs, having the ability to speak a second or third language is an asset for which employers are routinely willing to pay more. Clearly there are a lot more opportunities in Canada for people who are fluent in French and English than there are for the unilingual. That is a fact of life that is not based on race. The underlying premise of the complaint made by the Caucasian workers was that Caucasians can’t learn Chinese. If the nightclub had the option of hiring Chinesespeaking Caucasians, or any other race, and persistently chose to hire Chinese people who could speak the language, that would be discriminatory. That is not what happened.
I worked my way through all of my undergrad as a server. In my gap year I managed the front end of a restaurant. I have good people skills and significant experience as a server.
Let’s face it, the chances of me being hired in a nightclub aimed at attracting 20-somethings are slim to none. Arguably the business owners would have a bona fide business interest in hiring younger workers who connected with the target clientele. Although few employers would be stupid enough to admit my resume was being passed over because of my age, imagine they got caught. This case from Vancouver would not help them. Age is specifically mentioned as a prohibited ground of discrimination in human rights legislation throughout the country. Language skills are not. Fairly or unfairly, the nightclub who passed over my impressive resume for a 22-year-old newbie could be in trouble. Whether you think that is fair or unfair, those are the facts. Nightclub owners need not be concerned. I will not be starting to apply. I have no interest in staying up that late.
Human rights legislation prohibits discrimination based on a number of grounds, but not on the basis of language skills
ED CANNING PRACTISES LABOUR AND EMPLOYMENT LAW WITH ROSS & MCBRIDE LLP, IN HAMILTON, REPRESENTING BOTH EMPLOYERS AND EMPLOYEES. HE IS A FREELANCE CONTRIBUTING COLUMNIST FOR THE SPEC.