Racial discrimination in nightclubs.

Over the last two years, there have been allegations of racism and discrimination by Calgary nightclubs. Some of the alleged racist incidents have actually been videotaped in an expose by Global Television. In addition, some community members have come forward with reports of incidents that may be considered discriminatory. These include people of colour being treated in the following ways:

* visible minority males not being allowed in the clubs;

* being barred entry as they are told it's a "members only" night;

* being barred entry because they do not spend enough money;

* being barred entry due to a "dress code" issue, yet other similarly dressed people are being allowed entry; and

* being asked to produce more pieces of identification than others.

Most provinces and the federal jurisdiction have human rights codes that provide that services customarily available to the public cannot discriminate against people on the basis of race, colour, religion, country of origin, and other grounds. Entities that have been considered services customarily available to the public include hotels, bars, nightclubs, restaurants, and many others. The Alberta Human Rights and Citizenship Commission has published an interpretive bulletin to address discrimination in the hospitality industry (see Human Rights in the Hospitality Industry, December 2005, www. albertahumanrights.ab.ca/publications/ Bull_hospitality.pdf).

In its Hospitality Industry Bulletin, the Alberta Human Rights and Citizenship Commission defines discrimination as "treating a person differently based on the person's characteristics such as race, gender, or physical disability, or any of the other protected grounds ..."

Some bars and nightclubs have tried to argue that they are not services customarily available to the public. They often seek to rely on the idea that they have members and therefore are private in nature and not governed by human rights legislation. However, as noted by the Human Rights and Citizenship Commission, the fact that some clubs provide services to members only, or to members and their guests, does not necessarily mean that these clubs are automatically exempt from human rights legislation. A 1996 Supreme Court of Canada case, Gould v. Yukon Order of Pioneers, and a 1990 Alberta human rights case, Singh v. Royal Canadian Legion, Jasper Place (Alb.) Branch No. 255, set out factors which can help determine if a service is customarily available to the public. These are summarized in the Hospitality Industry Bulletin:

"1. How is membership defined? The more specific the membership criteria, the more likely the club is exempt. For example, a social club that limits membership to people of a particular religion sets very specific membership criteria, and is probably exempt.

2. Who receives services? The more that a club limits its services only to members, the more likely the club is exempt. For example, a club that does not allow guests to attend club events clearly limits many services to members only, and is probably exempt.

3. Is the service a commercial venture? The more that a club is engaged in non-commercial activities, the more likely the club is exempt. For example, a cultural association that provides most services to its members without charge is mainly non-commercial, and probably exempt."

The Hospitality Industry Bulletin goes on to state that the human rights legislation would cover most commercially operated nightclubs and bars that require customers to become members. Thus, these entities could not discriminate against people based on characteristics protected under human rights legislation.

Discrimination is usually permitted if the hotel, restaurant, or bar can provide reasonable and justifiable explanations for its behaviour or policies. These would include safety issues and meeting one's obligations under liquor legislation (e.g., it is illegal to serve a person who may be intoxicated).

These cases illustrate unsuccessful excuses for discrimination that establishments have tried to rely on:

* Hiding behind a dress code to disguise racism: Carpenter v. Limelight Entertainment Ltd. (1999); Singh v. Royal Canadian Legion (see above).

* Ending a dance early because "Chinese do not drink enough": Shew v. S.T.C. Systems Ltd. (1989).

What can people do if they think they have been discriminated against by a club? The Sheldon M. Chumir Foundation for Ethics in Leadership prepared a publication for university and college students to suggest what a person can do. Its suggestions include the following:

"If you or your friends feel you have been discriminated against or have seen this occur, you can:

* Contact the nightclub manager about the situation;

* Contact the Alberta Human Rights and Citizenship Commission to discuss the case confidentially or file a complaint based on your legal rights, within one year;

* Make sure you know the nightclub membership practice, dress codes, and age restriction before you go;

* Ask around and become a member of a nightclub that supports diversity;

* Talk to friends about their experiences at nightclubs ...;

* Organize a boycott or protest outside a club;

* Contact the media;

* Organize a diversity night at a nightclub;

* Talk to the bouncers about discrimination; and

* Fill out an on-line evaluation of that nightclub (only some nightclubs offer this)."

It has been reported in the press that there are complaints before the Alberta Human Rights and Citizenship Commission alleging racial discrimination in some Calgary bars. Hopefully these will be resolved in a manner that emphasizes the human dignity of the patrons, who must not be discriminated against in the provision of services customarily available to the public.

Linda McKay-Panos, BEd, LLB, LLM is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta.