Bish v. Chez Moi Tavern
1981-04-10
Ontario Board of Inquiry
CHRR Doc. 81-031
Peter Bish Complainant
v.
Chez Moi Tavern and Mr. R. Korenowsky, Owner Respondents
Hearing Date: January 16, 1981
Date of Decision: April 10, 1981
Place: Toronto, Ontario
Before: Ontario Board of Inquiry, Jane Banfield Haynes
Appearances by: Janet E. Minor for the Complainant and the Ontario Human Rights Commission Donald J. Catalano, Q.C., for Chez Moi Tavern and Mr. R. Korenowsky
SEX DISCRIMINATION — position as server denied — BONA FIDE OCCUPATIONAL QUALIFICATION — gender for server
Summary: Mr. Bish responded to a newspaper ad for a dining room employee at Chez Moi Tavern and was told only a waitress was wanted. The owner of the Tavern preferred to employ only waiters in the beverage lounge and only waitresses in the dining room. The owner's preference does not constitute a bona fide occupational requirement: the Respondent was ordered to pay Mr. Bish $100.00 compensation for loss of employment income.
DECISION
1In September 1978 Peter Bish wanted employment and saw an advertisement in the Toronto Star newspaper which read as follows:
WAITRESS/WAITER
WE need full & part-time people who are reliable & want steady employment. You should have dining room exper., be neat in appearance & dress. Lounge exper. is an asset. If you qualify, please apply at the Chez Moi Tavern. 30 Hayden St. (1 block S. of Bloor, E. off Yonge) between 3–5 p. m. on Mon.
Mr. Bish decided to seek this job, in the belief that he was qualified, both in appearance and because he had previously worked for one year as a full-time waiter in a Toronto restaurant responsible for food and beverage service. During the afternoon of 11 September 1978 Mr. Bish went into the Chez Moi Tavern and spoke to a man behind the bar whom he took to be the bartender and told him that he was applying for work in response to the advertisement. According to the testimony of Mr. Bish, this individual told him "that they were only looking for a waitress. I (i.e. Mr. Bish) said to him that the ad in the newspaper mentioned both waiters and waitresses. He said, 'Yes, he knew that, that they had to advertise both by law, but that they only wanted a waitress.' The position was downstairs where it was waitresses working. I asked him if he knew that this was against the law and he said the opening was for a waitress." There was no further conversation and Mr. Bish then left the premises without speaking to anyone else, and a week later found employment at another Toronto restaurant.
2Shortly after this conversation, Mr. Bish filed a complaint under the Ontario Human Rights Code, R.S.O. 1970, c. 318 as amended. Section 4(1)(a) states that no one shall refuse to recruit any person for employment because of the sex of such person. Section 4(1)(b) states that no one shall refuse to employ any person because of the sex of that person. Section 4(1)(e) states that no one shall establish or maintain any employment classification or category that by its description or operation excludes any person from employment because of the sex of such person.
3In this hearing, two separate but related issues were addressed. The first concerned the authority of the bartender, or the individual to whom Mr. Bish spoke, to speak for Mr. Korenowsky, owner of the Tavern, in stating that only waitresses were wanted, whatever the advertisement said. The second concerns the hiring practices of Mr. Korenowsky and the differentiation, by sex, of persons hired for the two operations of the Tavern, that is, the beverage lounge and the dining room.
4In respect of the first, counsel for the Tavern and Mr. Korenowsky stated that an individual seeking employment would normally or usually ask to speak to a manager about conditions of employment, such as pay, hours of work, type of work, rather than take the word of an employee. Mr. Bish, on cross examination, stated that he had indeed, in respect of job applications both before and after the incident complained of, spoken to managers in the various restaurants. Counsel for Mr. Bish referred to the case of Muccilli and Ed's Warehouse Restaurant, (1979), to support the contention that an individual seeking employment is entitled to assume that the person to whom he/she speaks in the first instance has the authority of the employer. Having considered the facts of this case, I am of the opinion that the present complaint is similar to the Muccilli case. There the complainant spoke on the telephone to someone who could be assumed to speak for the management in the normal course of employment enquiries. In this instance Mr. Bish assumed that the individual behind the bar had knowledge of the job qualifications but he did not make further enquiries about the conditions of work and did not speak, or ask to speak, to the manager, a course of action which he followed in a subsequent application for employment, elsewhere. Neither Mr. Bish, Mr. Korenowsky or the Human Rights Commission officer, were able subsequently to identify the person behind the bar to whom Mr. Bish spoke and there is, therefore, no corroboration for Mr. Bish's account of that person's statement. There is, however, evidence that the statement that only a waitress was wanted, irrespective of the advertisement, was an accurate one, and concerns the pattern of hiring.
5The second issue therefore concerns the pattern of differentiation by sex according to function, and there is evidence to support Mr. Bish's complaint that Mr. Korenowsky, in September 1978, did make such a differentiation, on the grounds of his personal preferences. The Chez Moi Tavern, which Mr. Korenowsky has owned and operated for many years, has two levels or floors: the downstairs or basement level is a dining room, serving meals and drinks; the upstairs or street level is a beverage lounge with snack service. Mr. Korenowsky stated that it was his personal preference to have waiters employed in the beverage lounge and waitresses employed in the dining room, on the grounds that, among others, only waiters could handle the heavy trays of drinks and handle or cope with the altercations and fights which might, and according to him, frequently do, break out among the customers and which in some cases require the attention of the police. On the other hand, Mr. Korenowsky was of the opinion that women were entirely suitable to serve in the dining lounge but he could give no reasons for this preference. He also stated that in his experience having waiters and waitresses working together in the same room led to undesirable personal interaction. The evidence of the interview between Mr. Korenowsky and the Human Rights Commission officer in early 1979 and the evidence presented at the hearing indicate that in the autumn of 1978 at least, Mr. Korenowsky firmly held the view that the segregation of serving persons, by sex, was good business practice, based on many years of experience as an owner and manager. The evidence also indicates that subsequently Mr. Korenowsky hired waiters in the dining room, but not, apparently, a waitress in the upstairs lounge. The evidence on these matters is not clear-cut. Hiring records, by sex of those interviewed and hired, both in 1978 and later, were either not available or produced at the hearing. For example, Mr. Korenowsky stated that about ten individuals applied for a job as a result of the advertisement, but he could not say how many of either sex and whether a woman was hired in preference to Mr. Bish for the dining room job. Nevertheless, having considered the evidence and the testimony of the Human Rights Commission officer who spoke to several Tavern employees, I conclude that Mr. Korenowsky preferred to hire, and did hire, only waitresses for the dining room, and only waiters for the beverage lounge, in 1978.
6Does such a preference constitute a bona fide occupational qualification and requirement, as stated in the Code, section 4(6)? Counsel for the Complainant referred to the case of Robertson and the Metropolitan Investigation Security (Canada) Limited, (1979), where the employer attested that in his opinion certain jobs were suitable for men and others for women, and that the job in question was not suitable for the woman complainant. The chairman of the Board of Inquiry, after a review of relevant case law, stated that once a prima facie case of discrimination has been made out, the onus is placed upon the employer to prove that the discriminatory practice of hiring is so necessary to the business operation that it can justify the discriminatory effects of such a hiring policy. In my opinion and in this present instance, the personal preference of Mr. Korenowsky cannot be said to constitute a bona fide occupational qualification or requirement for the employment. There is no evidence that Mr. Bish or any other qualified male could not have undertaken the duties required for either of the two areas in the Tavern, and specifically for the dining room where only waitresses were at that moment employed.
7The Board therefore finds that Chez Moi Tavern did refuse to employ Mr. Peter Bish because of his sex contrary to section 4(1)(b) of the Code. Several remedies were requested by counsel for Mr. Bish. First, the Board was asked to award compensation to Mr. Bish for loss of employment income for the one week he was without employment; second, the Board was asked to award general damages for injury to feelings; and third, the Board was asked to require Mr. Korenowsky to post a copy of the Human Rights Code in his establishment and be directed that his hiring practices in the future reflect the mandate of the Code.
ORDER
8Having considered the evidence, I am of the opinion that Mr. Bish should be compensated for loss of employment income for one week. I believe that his claim for damages for injury to feelings is not supported by evidence presented to the Board. I do not believe that he was so deeply hurt that his dignity or sense of self-worth was at stake, although I recognize that he was offended by the hiring pattern of the Tavern as stated by the employee he spoke to. The evidence of these hiring practices indicates that since 1979 the segregation by sex in the Chez Moi Tavern has been changed and accordingly I see no compelling reason to direct Mr. Korenowsky to do so.
9In the result, I order the Respondent to pay the Complainant the sum of $100 and to post a copy of the Human Rights Code in his establishment.