March 28 2018
A curious little case out of British Columbia recently made international news. I first read about the case in The Guardian from England, and later saw a story in the Washington Post. Pretty amazing for a short little nonsuit motion heard at the B.C. Human Rights Tribunal!
Here is the decision called Rey v. Milestones Grill and Bar.
The case engages material in my Law of Work text found in Chapter 26 (Putting Human Rights to Work), 27 (What Are the Prohibited Grounds of Discrimination?), and 28 (The Bona Fide Occupational Requirement and Other Discrimination Defences).
Rey had worked as a server at a Milestones in Vancouver since 2015. He is from France. The restaurant made employees sign an anti-harassment and bullying “Workplace Policy” and a letter that acknowledged that “intentionally speaking to a Guest or Associate in a rude or unfriendly manner” could be grounds for dismissal. The employer agreed that Rey was a good server. At times, the employer talked to Rey about his behaviour towards co-workers and Rey claimed that on more than one occasion the General Manager had said that it might be because of Rey’s “culture” that other workers find him “aggressive”.
A performance review dated April 6 2017 indicated that Rey had received excellent customer feedback and that he was very professional with this tables, but also noted that Rey can be “combative and aggressive” and that he has a temper. In July 2017, Rey was given a Corrective Action Form after he had a disagreement with a coworker and member of management. At some point after this, Rey was temporally suspended from work (which might have been grounds for constructive dismissal), but that incident was not fully explained.
The event that led to Rey’s termination occurred on August 14 2017. Rey instructed a fellow server to finish his tasks. That server went to the office to complain about Rey harassing him. Rey showed up at the office and is alleged by the employer to have been aggressive and rude with the server and a manager. On August 16, the employer terminated Rey for being “aggressive, rude, and disrespectful” to the manager and the coworker, behaviour about which Rey had been warned before. In the termination meeting and a follow-up email, Rey argued that he was being fired for his French culture, which he argued is “more direct and expressive”.
The Human Rights Complaint
Rey filed a human rights complaint, arguing that he was terminated for reasons related to his culture contrary to Section 13(1) of the B.C. Human Rights Code, which prohibits discrimination in employment based on, among other grounds, ancestry and place of origin. An exception exists where the discrimination is “based on a bona fide occupational requirement” (Section 13(4)). The employer applied to the Tribunal asking it to dismiss the case on the basis that it had no reasonable basis of success.
Not surprisingly I think, the Tribunal dismissed the employer’s application. The burden is on the employer to establish that there is no possible basis for a complaint. At a hearing, Rey would need to show that his termination was related in some way to his French ancestry. At this preliminary stage, the Tribunal does not hear evidence or make findings of fact, but rather looks at the information submitted in the pleadings.
The Tribunal ruled that there was very little information to go on, but certainly Rey had included sufficient evidence which if true would bring the complaint into the realm of discrimination based on ancestry. The Tribunal summarized its decision like this:
I am denying the Restaurant’s application because it bears the burden at this stage of persuading me to dismiss Mr. Rey’s complaint without a hearing. The threshold for a complaint to proceed to a hearing is low – it must be taken out of the realm of conjecture. Given that there is at least some evidence supporting an inference that Mr. Rey’s ancestry was a factor in the termination, and given how little other information I have about what happened, I cannot find that the Restaurant has met its burden on this application. A Tribunal Member will have to hear the evidence and make factual determinations about what happened in Mr. Rey’s employment, and whether stereotype operated to hold him to an unjustifiably higher standard than his colleagues. At a hearing, Mr. Rey will have to lead evidence about what exactly the stereotype is with respect to people from France. In that regard, a Tribunal Member will be unlikely to accept, without evidence, that French people are perceived as aggressive in Canadian workplaces. Mr. Rey will have to explain what it is about his French heritage that would result in behaviour that people misinterpret as a violation of workplace standards of acceptable conduct.
Therefore, the case can proceed to a hearing.
As the Tribunal notes, at the hearing Rey will need to present evidence that demonstrates that there is a stereotype that French people are aggressive in the work setting. What do you think that evidence could be? A quick Google search of “French stereotype” led me to this story in The Telegraph entitled “The Truth Behind French Stereotypes: From Its Surly Waiters to its Lousy Music.” Curiously, that article was published on August 15 2017, one day before Rey was fired. The author lists “French Waiters are Rude” as the number one stereotype:
The cliché: French waiters are surly, and this is a bad thing. As recently as June last year, French foreign minister Laurent Fabius claimed that France was suffering from a “welcome deficit” which meant overseas visitors perceived the country as unfriendly. Including its waiters. “Even City Hall is telling us to be more smiley,” Bernard Migneau, head waiter at Paris bistro Le Petit Machon told The Wall Street Journal. “We are all experiencing real pressure from L’Office de Tourisme to be cheerier and chattier – more American. But it isn’t going to happen tomorrow.”
There you go. Do you think the Tribunal will accept newspaper articles like this as evidence? Should Rey start searching for a sociology professor with expertise is social stereotypes to give expert evidence?
Personally, I prefer the French stereotype encaptured by Pepi Le Pew — “heeey, a lady feminine female skuunk .. in the spring, a young man’s thoughts turn to thoughts of fancy..” If Rey had been fired for sexual harassment, maybe we’d have seen the classic “Pepi Le Pew Defense”! To dream.
Questions for Discussion: What is the Employer’s Defence?
Seriously though, let’s assume that Rey can make out his case because there is smoking gun evidence (as he alleges) that managers had remarked in the past about how his French background explains his attitude at work, which is the source of the employer’s concern. Here is a good employment law practice question:
Would the employer nevertheless have a valid defence? The employer would no doubt argue the bona fide occupational requirement defence found in Section 13. That requires application of the so-called Meiorin decision (see Box 28.2 in The Law of Work). Do you think that the employer could satisfy the requirements of the Meorin Test? What is the “standard” or rule that is being challenged in this case? Do you think that standard or rule would meet the “reasonably necessary” component of the test?