Weilers LLP

Respecting Rights is not just Right, It is Good Business

Respecting Rights is not just Right, It is Good Business

September 8, 2020

By Brian Babcock

Racism is not only wrong, it can be costly. A recent Human Rights Tribunal of Ontario decision, Graham v. Enterprise Rent A Car Canada Company representing Enterprise, Alamo, and National Car Rental, illustrates that subtle or systemic racism still arises in everyday commonplace transactions, despite being contrary to the Human Rights Code.

It is the employer, and in that case, the service provider, which bears the responsibility of the actions of front line workers, and in the case, a first level supervisor.

The claimant, Ms. Graham, identifies as a Black woman. She attended at an airport car rental desk to rent a vehicle which she had booked online. Based on the online information, she expected to have to present a driver’s license and credit card. When she arrived at the counter, she was asked for additional ID, and subsequently refused the car. Significantly, when she asked why she needed to present additional ID, although she saw other customers not being required to, she was told that there had been a lot of theft lately. She offered to show her Health Card.  The manager refused to give her the vehicle because she had “disrespected his employee”.

The rental agreement does not require further ID except from “international renters” but does state “Additional Government issued identification may be required.”

After a hearing at which the claimant and a manager from the respondent testified, the Tribunal found that she had been discriminated against on the basis of race and colour, even though no overt slurs or references to Ms. Graham’s race were alleged or proven. Racial discrimination may be based on learned attitudes and biases, which may operate at an unconscious level. A racialized person is at risk of being treated adversely by a service provider as a result.

The customer service representative involved did not give evidence. The manager could not explain why the discretion to request additional ID was imposed upon Ms. Graham. There was no evidence of corporate policies as to when the discretion should be exercised. There was also no evidence that there were actually increased thefts.

The manager’s explanation that he had refused the rental based upon her behaviour and inability to produce a second photo ID was rejected.

The Tribunal found that Ms. Graham was subject to discrimination and unconscious bias based upon race and colour. The Tribunal has come to understand that the application of racial stereotypes includes the heightened scrutiny of Black people as being prone to violence and criminal behaviour and noted that:

such heightened scrutiny may involve an over-reaction to the behaviour of Black people when they are involved in situations that pose challenges to those in authority and this too, can form part of the differential treatment they experience. While the scrutiny itself may be unintentional, the impact of being more highly scrutinized must be examined from the perspective of the racialized person and not from the perspective of those who do not experience it.

Ms. Graham was awarded $2,500.00 for injury to her dignity and self-worth, inclusive of additional rental costs incurred.

Perhaps more significant, and likely more costly to the respondent, the Tribunal ordered the respondent to provide Human Rights Code training to all managers and customer service staff at that location.

There are several lessons from this decision, including:

  • proof of overt racial slurs is not required to prove racial discrimination
  • inconsistent application of policies and procedures may be a factor in proving unconscious bias
  • training in policies and procedures, and in particular, consistent exercise of discretion, is essential, and just good business sense
  • although the damages in this case were low, in other areas of discrimination, awards have been becoming much higher recently, so amounts awarded for similar discrimination may increase now that this point has been made in several cases
  • if Ms. Graham had been represented, she might have received a higher award
  • legal costs and the cost of staff time to respond are significant, especially considering that a claimant has no cost to file, and unlike court cases, there are no costs awarded to the respondent if the claim is unsuccessful
  • the business runs a risk of damage to its reputation if the decision becomes publicized. Media attention on issues of racism is heightened by the efforts of Black Lives Matter.

Ignoring human rights obligations is not just wrong, it is also bad for business.