This struck Mr. Maclean as unfair and last year he made an application to the Human Rights Tribunal to determine whether this differential cover charge constituted “discrimination” in contravention of Ontario’s Human Rights Code (“Code”).
Under the Code, every person has the right to equal treatment when accessing services, and this includes restaurants, bars and other businesses and facilities available to the public. It is prohibited for service providers to discriminate on the basis of gender, race, disability, sexual orientation, gender identity and expression, among other prohibited grounds of discrimination.
The case was heard by the Human Rights Tribunal of Ontario in February 2013, and the Tribunal’s decision was released in April 2013. According to the Tribunal, the cover charge may have constituted formal differential treatment and been unfair, but it didn’t amount to substantive discrimination.
The Vice Chair rejected Mr. Maclean’s argument that charging men twice what was being charged to women perpetuated the “stereotype” or prejudicial belief that men were less worthy than women. According to the Vice Chair, “there are many things that could be said about societal beliefs in Ontario, but the notion than men are less worthy than women is not among them.” The Vice Chair went on to point out that the history of gender discrimination in Ontario reveals that women have fought for the right to vote and for equal pay, and that while progress has been made, ongoing discrimination against women in society is evidenced by the under-representation of women in management and positions of political power.
In the Vice Chair’s analysis, charging men more for a cover fee was not substantive discrimination when viewed in the “overall societal context” and “in light of the privileged position that men” hold in society. And, “the notion that charging a lower cover charge for women somehow demeans men as a gender in the overall societal context does not bear scrutiny.”
The case, which can be found here, is final and is unlikely to be appealed: Maclean v. The Barking Frog, 2013 HRTO 630.