Caucasian workers' discrimination complaint fails

The British Columbia Human Rights Tribunal has dismissed a discrimination claim by two Caucasian workers in the face of multiple reasons for reduced hours and a failure to recall them from layoff in favour of Chinese workers, and a lack of evidence showing any relation to a protected human rights ground.

“The tribunal looked at the whole puzzle rather than the individual pieces, and that's why the decision was made that it wasn't discriminatory,” says Trevor Thomas, co-founder and partner at Ascent Employment Law in Vancouver. “The company had a legitimate reason for hiring Chinese-speaking servers back, as they could speak a language that catered to the clientele that they were trying to bring into the business.”

The two workers were a server and a lead server who worked at a Vancouver nightclub called Levels owned by Finale Entertainment. Both were hired as part of the initial round of hiring for the opening of Levels in May 2019.

The servers, who were both Caucasian and English-speaking, were employed on a part-time basis with a normal work week of 16 to 24 hours, but there was no guarantee of how many hours they would get. The staff had diverse racial backgrounds, including some of Asian background, but none of the servers spoke Chinese. However, the VIP host spoke Chinese to help with the Asian customers.

Levels was focused on attracting a high-spending Asian clientele, but Finale Entertainment found some initial difficulties hired a business consultant in the summer of 2019. The business consultant talked to customers and promoters and determined that Levels needed to hire Chinese-speaking servers to better serve customers.

New employee paid higher rate

Finale hired a Chinese-speaking server who was hardworking, but her lack of experience led to some mistakes and performance issues. However, she was paid a higher rate than the Caucasian servers.

According to the Caucasian serves, their hours decreased after the Chinese server was hired. When a second Chinese-speaking server was hired, their hours dropped further and they were sometimes sent home early. Levels had a rule that when business was slow, the Chinese servers were not to be sent home.

According to the business consultant, the Chinese servers were needed for their Chinese-speaking customers and the Caucasian servers were part of an “inner circle” that didn’t welcome new employees.

On Oct. 21, 2019, the two Caucasian servers filed a human rights complaint alleging that Finale hired two unqualified servers and gave them preferential treatment because they were Chinese and spoke Chinese. The reduction in their own hours was discrimination based on their race, they claimed.

In late 2019, there were significant problems with the nightclub’s business, leading to some staff not getting paid and a walk-out. The nightclub closed briefly due to a conflict between the owners and management, and the general manager departed.

Pandemic layoffs

In March 2020, Levels closed due to the COVID-19 pandemic. All staff were laid off with an email advising that they would receive one week’s compensation in lieu of notice in accordance with the BC Employment Standards Act (ESA).

Levels reopened briefly on June 19 and 20 in a limited capacity and then went back-and-forth between being open and closed. All the workers who were brought back were hired as independent contractors on a shift-by-shift basis. However, the Caucasian servers weren’t returned to work.

Shortly after the June reopening, Finale sold the nightclub and the new owners hired some of the previous employees while bringing on some new ones.

The workers made another human rights complaint, alleging that the failure of Finale to rehire them was a retaliation for their initial discrimination complaint.

The workers provided payroll tracking spreadsheets for eight of the 13 weeks from May 13 to Nov. 19, 2019, showing their hours decreased from when the nightclub opened after the Chinese servers were hired, and the Chinese servers worked more hours. Finale maintained that the nightclub had more slower nights as time went on and denied a correlation between the Chinese servers’ hiring and any income reduction for the Caucasian servers.

Protected characteristic, adverse impact

The tribunal found that the servers identified themselves as Caucasian and this was a protected characteristic under the BC Human Rights Code.

The tribunal accepted that the payroll tracking showed that the Caucasian servers worked fewer hours from August to November 2019, although the records were only partial. This resulted in reduced earnings and an adverse impact during that period, but there was no evidence of hours worked from December 2019 to March 2020, so no adverse impact was proven for that period, the tribunal added.

The tribunal noted that language on its own isn’t a “freestanding ground of prohibited discrimination” unless it’s tied to a prohibited ground such as race or place of origin. In this case, Finale knew from the beginning that it needed someone in the nightclub who could speak Chinese in order to communicate with customers in its target market, high-spending Asian clientele. In recognition of this need, the company hired a Chinese-speaking VIP host.

The tribunal found it was reasonable for Finale to hire Chinese-speaking servers when it realized that the VIP host wasn’t sufficient to cater to Level’s customers. The company saw the ability to speak Chinese as an asset and had a preference of having a Chinese-speaking server on duty at all times, and this led to them having their shifts cut less often when business was slow, the tribunal said.

The tribunal also found that the Chinese servers received some preferential treatment, which led to adverse impacts to the Caucasian servers. However, there was no evidence that this was for any reason other than language ability – there was nothing proving that it was because the Caucasian servers were white, the tribunal said, adding that non-white servers who didn’t speak Chinese were also more likely to have their hours cut.

Bona fide reasons

“There's a legitimate business reason for having a Chinese-speaking server at the establishment because you're catering to a population that speaks Chinese,” says Thomas. “It’s a defence of bona fide justification.”

In addition, there were other reasons for the reduced hours, such as slower business, weather, and changes to the business model, said the tribunal, noting that the servers’ employment contracts didn’t guarantee a certain number of hours.

The tribunal found that there was no evidence that the two Caucasian servers were treated any differently than any other servers in the initial layoff. When Levels reopened, Finale only brought back a few servers on a temporary basis, and the two Caucasian servers were not the only servers who weren’t brought back to work, said the tribunal, noting that Finale felt that the Caucasian servers weren’t welcoming to new employees.

“The tribunal looked at the evidence to determine if there was any reasonable basis for the Caucasian servers not to be brought back,” says Thomas. “Ultimately, they found that there was a reasonable basis, because for a number of reasons some of the Chinese speaking servers were outperforming the Caucasian servers.”

As with the reduced hours, the tribunal found that the Caucasian servers did not prove a connection between them not being rehired and their human rights complaint. There were several other reasons – limited operation, only the top performers were brought back, the servers excluded others, and there was a new ownership transition – to explain the failure to return the Caucasian servers to work, the tribunal said in dismissing the complaints of discrimination and retaliation.

No connection to race

The circumstances made it an unfortunate situation for the Caucasian servers, with the nightclub experiencing difficulties and the tension between ownership, management, and employees, says Thomas.

“At one point, the servers weren't paid the wages and they had to file a complaint to the Employment Standards Branch, so it just sounds like an absolute mess,” he says. “But just because of the mess, it doesn't mean that discrimination occurred - there were so many other unfortunate things happening that culminated in these servers getting reduced hours and not getting called back, but is that connected to their race? Probably not.”

Although the employer was successful in this decision, it might have saved itself the trouble of defending against a human rights complaint by considering the risks of its actions, says Thomas.

“You have to be able to anticipate what's going to happen in the future and think about how to mitigate against potential risks,” he says. “What are the possible reasons employees can sue me for that I can start protecting myself against now - things like making sure you've got enough money in the kitty to make sure your wages are paid, and if you have to let somebody go, you want to make sure there's enough money to pay their severance - it's really getting your ducks in order.

“Unfortunately for [Finale Entertainment], it sounds like their ducks were not in order at all.”

See Server and Lead Server v. Finale Entertainment Inc., 2024 BCHRT 22.