Allegations of a racist encounter at Winnipeg’s historic Fort Garry Hotel have lawyers urging companies to prepare for the possibility of public racism at their establishments.
Winnipeg lawyer Priti Shah, 51, said she was the subject of racist comments from another female patron in February after Shah approached a waitress to discuss an issue with her meal.
“She said that I should go back to my own country,” said Shah, who was born in Canada. “I was in shock.”
An apparent “35-minute” delay for the manager to intervene and subsequent “haphazard” investigation did nothing to relieve the tension, nor did the decision by management to request the perpetrator to move tables, she said.
While Fort Garry Hotel owner Ida Albo said staff had trouble confirming the story due to “too many inconsistencies,” she said the hotel does not have formal conflict management training in place.
The alleged incident isn’t an isolated one. In December, an Asian customer at a TD Bank in Toronto was the subject of another customer’s racial slur — met by silence from onlookers and bank staff, according to media reports. And a Kansas bar was the scene of a racially motivated shooting in late February, leaving one immigrant dead and another injured.
Shah said she chose to go public about her experience in hopes it can help create a more tolerant society.
“We need to figure out how to do it better,” she said. “A hotel or any business has not only a right but a responsibility to set the tone for a respectful environment, and then create those boundaries around respect.”
“People need to think about what they’re going to do when one of these situations arises. We do need to prepare proactively.”
Racially charged society
Reports of racist incidents have escalated over recent years, according to Alan Dutton, national director of the Canadian Anti-racism Education and Research Society in Vancouver.
“We have more complaints of racist incidents on our website,” he said. “In fact, it’s to the point where we can’t handle the number that we receive.”
The election campaign of United States President Donald Trump served to unleash racist sentiments in America and Canada, said Dutton.
“The rhetoric from the United States and some parts of Canada has provided a licence for hate-mongers to mouth and voice the hatred,” he said. “We’ve seen incidents on the streets in Vancouver, Winnipeg, Montreal.”
Employers need to be aware of the possible fallout of a racially charged society, said Nadia Halum, labour lawyer at MacLeod Law Firm in Toronto.
“Given the current political climate, I think we’ll unfortunately see a rise of these types of racial harassment occurring in different contexts,” she said. “So it’s definitely important for companies to be proactive and know how to respond to these situations, what their obligations are.”
The high number of cases submitted to human rights tribunals across the country is a quick indicator that discrimination issues remain a definite problem, specifically at small and medium-sized businesses where the implementation of anti-discriminatory policies may be viewed as unnecessary, said Halum.
“I don’t think companies are up to speed,” she said. “I think there’s room for improvement. When you look at medium-sized employers or small ventures, new companies, those kinds of companies are more open for liability because there’s no requirement in the human rights code to have a policy.”
Meanwhile, rude behaviour is being perceived as acceptable as political correctness undergoes a backlash, said Tracey Epp, labour lawyer at Pitblado Law in Winnipeg.
“In this case, the rudeness also happens to be contrary to law,” she said. “I think it’s going to happen again and organizations need to be ready for it. They should have a process in place.”
“They have policies and procedures if somebody calls in a bomb threat. They should have a policy and procedure in place in how to deal with what happens when one customer goes after another customer, for whatever reason.”
Requirement to act
Under Canadian human rights legislation, employers are required to respond to incidents of this nature, said Epp.
Manitoba’s human rights code specifically states no person shall discriminate with respect to any service accessible to the public, and no one responsible for an activity can harass, knowingly permit, or fail to take reasonable steps to terminate harassment of one person by another, she said.
“If the code applies to you, you are responsible to ensure that you yourself don’t harass people, but you also have to make sure that no one else knowingly harasses other people on your premises,” said Epp. “You have to take reasonable steps.”
“Places like hotels and movie theatres, wherever the public is served, they need to be ready for this kind of a thing. They need to have policies and procedures in place that dictate what happens if there is an incident.”
While not liable for any malicious comments , a company’s response measures or lack thereof could become the subject of a lawsuit. If reasonable steps are not undertaken, an organization could face a human rights complaint, with the potential of a monetary penalty, said Halum.
“Service providers have an obligation to take prompt, effectual and proportionate action when they become aware of racial slurs or harassment,” she said. “There’s no magic one-size-fits-all approach, but the main thing is an employer should take reasonable steps to alleviate any distress that arises from the comment, and show that they’re committed to maintaining an environment that’s free of racial harassment.”
While the response does not need to be perfect, it does need to be reasonable, and often comes down to a judgment call, said Halum.
“The unfortunate thing from an organization’s position is they could do everything right, but if the customer still isn’t satisfied, there is nothing that could stop that person from filing a complaint.”
In that case, organizations will be at an advantage if policies were already in place and employees were proactively trained, she said.
Proactive training needed
Human resources professionals need to be aware of social trends and foreseeable incidents such as these, and take a proactive approach towards the training and implementation of anti-discrimination policies, said Halum.
At TD Bank, for instance, the teller wasn’t even familiar with the slur used. “You can’t really give a response if you don’t even understand what the problem is,” said Halum.
Training can help bring employees up to speed on what is considered discrimination, and enables them to work confidently, knowing their employer values non-discriminatory policies.
“You need to understand the choices that you are making, and make some adjustments,” said Shah. “You can’t make those adjustments without having knowledge and awareness. We can’t know everything there is to know about every other culture, but we do have to be primed to ask the right questions.”
“This training is critical, not just because incidents are going to be on the rise, but because our population is becoming more and more diverse and we need to understand one another.”
Ensuring service is conducted free of discrimination is a “top-down endeavour,” said Epp.
“First of all, you have to have a policy statement that says, ‘We will not tolerate this kind of behaviour,’” she said. “The customer is not always right. If you don’t provide an atmosphere that’s free of harassment and discrimination, you’re going to lose other customers and you’re not going to be on the right side of the law.”
Once a policy is put in place, employees need to be empowered via training that helps them identify conflict, and defer to management when necessary, said Epp.
“Organizations do need to look at this and say: ‘OK, if this happens, what is our position? What should the consequence be?’”
A good starting point would be to show the door to anyone making racist, sexist or mean-spirited remarks, said Dutton.
“This is just common decorum. And it would seem to me to be a good business practice to ensure that, because if you don’t, then I think you’d lose business,” he said.
If an employee is subjected to racist or sexist remarks, the employer will eventually be subject to civil litigation or human rights legislation, said Dutton.
“If an employer cannot maintain an atmosphere of tolerance and acceptance, then staff will be subject to those remarks themselves,” he said. “So the onus is on the employer or the owner to make sure that there is respect within the organization, whether you call it a zero-tolerance policy or whether you just simply call it normal business practice to ensure civility.”
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