Have you ever been in a shop playing edgy modern music and been offended by the lyrics? One woman recently took her complaint to the British Columbia Human Rights Tribunal only to be told she had no case. In Redmond v. Hollywood Boutique, 2018 BCHRT 121, the Tribunal dismissed the complaint, finding that it did not meet the test for discrimination under provincial human rights legislation.
Ms. Redmond, a person of colour, was trying on clothes in the dressing room when she heard a song by rap stars Jay Z and Kanye West being played over the store’s stereo system. The lyrics repeatedly used racially charged language, leaving Ms. Redmond “immediately angered” and “offended”.
Ms. Redmond questioned a staff member about the appropriateness of the music being played, and demanded that it be changed. By this time, another song was playing and the staff member refused to change the music, explaining that they were playing a “Top 40” hip hop playlist curated by Apple music. Also, the staff member said that she was unable to leave the cash register and the stereo was located elsewhere in the store.
The following day, Ms. Redmond contacted the mall and asked to speak to the property manager. The property manager called the store manager to advise of the complaint, and the store manager called Ms. Redmond to apologize, acknowledging that the song had offended her, and said that she would look into the matter so that it did not happen again.
Does music with offensive lyrics violate human rights legislation?
Ms. Redmond filed a complaint with the Tribunal alleging that the Hollywood Boutique discriminated against her in the provision of a service on the basis of her colour, race and ancestry, contrary to section 8 of the Human Rights Code.
As this was a single incident, and not a pattern of conduct, the Tribunal considered the factual circumstances to determine whether the Code had been violated. Those circumstances include “the nature of the relationship between the … parties, the context in which the comment was made, whether an apology was offered, and whether or not the recipient of the comment was a member of a group historically discriminated against.”
The Tribunal found that Ms. Redmond, as a person of colour, was a member of a group historically discriminated against, and as such, was protected by the characteristics of her colour, race and ancestry. The Tribunal accepted Ms. Redmond’s testimony that she had been adversely affected by the incident at the store, in particular, the impact it had on her ability to finish the school term and complete her exams.
However, the Tribunal held that, “not every negative comment or single incident that is connected to a prohibited characteristic will be discriminatory harassment contrary to the Code. The context of the incident is significant.”
In this case, the racial slur occurred in the context of a song being streamed through an Apple music playlist. The incident was brief in nature, and no racial slur was attributed to any member of the store’s staff. The Tribunal accepted that the conduct of the store’s employees was professional and appropriate in the circumstances.
The Tribunal found that the factual circumstances weighed against a finding of discrimination in the circumstances.
Although Ms. Redmond found the song “discriminatory” in the usual sense of the word, the incident at the store did not amount to discrimination under the Code – Ms. Redmond was still able to fully access the services of the store.
After Ms. Redmond’s complaint, the store stopped streaming online playlists from Apple music and now downloads only censored versions of songs.
Implications for employers
While the Tribunal dismissed this complaint, it is easy to imagine a situation where the outcome may have been less favorable for the business. Consider the following scenarios:
- more than one of the songs being played contains racially charged language; or
- the staff dealing with the issue simply “brush off” the complaint.
In the above scenarios, it is possible that the factual circumstances could amount to a barrier to fully accessing the services of the business, and thus amount to discrimination under the Code. It is clear from the Tribunal’s decision that the outcome will depend heavily on the context of the situation and the actions of those involved.
Employee training programs and workplace policies covering discrimination and implicit bias towards customers may assist employers in avoiding similar situations.
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