A recent decision from the Human Rights Tribunal of Ontario (“HRTO” or the “Tribunal”) held that the gender balancing provisions of a tennis club association discriminated against women in the provision of services by providing females with fewer opportunities to play in the association’s Mixed League. In Miller v InterCounty Tennis Association (“Miller”), three female members (the “Applicants”) of tennis clubs belonging to the Intercounty Tennis Association (“ICTA” or the “Association”) brought an application before the HRTO challenging the ICTA Rules that governed the composition of teams in its Mixed League. The ICTA Rules required that Mixed League teams be composed of eight male members and four female members. The Applicants claimed that the ICTA Rules discriminated against women on the basis of their sex in violation of the Ontario Human Rights Code (the “Code”). Ultimately, the Tribunal decided in favour of the Applicants and ordered that a graduated schedule for fully integrating female players be imposed on the Association.
The ICTA was an association composed of various tennis clubs from different localities across Ontario. The ICTA curated several tennis leagues which pitted the members of local clubs against one another. The dispute focused on the ICTA’s Mixed League which consisted of teams of twelve that had both male and female members. The teams were further broken down into doubles pairings which consisted of three men’s doubles teams, two mixed sex doubles teams and one women’s doubles team. The result of this scheme was that each team in the Mixed League consisted of eight men and four women. The ICTA also had a Ladies League which consisted of only female players and offered daytime scheduling throughout the week on the basis of the assumption that many women did not work during the day and would be available during those times. The Mixed league matches were played in the evening.
The Applicants took the position that the 8:4 male to female ratio of the Mixed League constituted discrimination in the provision of services contrary to the Code.
The Tribunal applied the three-part test to establish a prima facie case of discrimination under the Code, which requires that the applicant alleging discrimination show the following:
- They are members of a group protected by the Code;
- They were subject to adverse treatment; and
- A ground protected under the Code was a factor in the alleged adverse treatment.
In the context of the provision of services, after a prima facie case of discrimination is made out, the responding service-provider then has an opportunity to show that the standard or rule in question is a bona fide requirement by establishing the following on a balance of probabilities:
- The service-provider adopted the standard or rule for a purpose rationally connected to the service-provider’s activities or purposes;
- That the standard or rule was adopted in an honest and good faith believe that it was necessary for the fulfillment of those purposes; and
- It would be impossible to provide the services proposed by the applicant without incurring undue hardship.
If the responding service-provider cannot establish that the standard or rule is a bona fide requirement the discrimination will constitute a breach of the Code.
Positions of the Parties
The Applicants argued that the team structure discriminated against women by providing them with fewer opportunities than men to play competitive tennis within the Mixed League. The ICTA contended that women were not adversely impacted by the team structure because the ICTA offered an alternative Ladies League in the daytime and women were free to play in other tennis leagues in the region. The ICTA also argued that it was difficult to find women who were competitive enough to succeed in the Mixed League, as evidenced by low turnouts for tryouts in the past. It was their position that that attempting to remedy the situation would result in undue hardship because it would cause certain clubs to withdraw from the ICTA, depriving it of essential revenues.
The Applicants argued that the Ladies League playing opportunities should not be considered. They argued thatthe increased presence of women in the labour market since the ICTA’s formation in the 1960s meant that many women were no longer able to play in the daytime during regular work hours. Further, the Applicants contended that low female turnout for tryouts was not a good indication of demand as many individuals knew that the same four women would make the Mixed League team every year which discouraged these individuals from trying out. They also disputed the ICTA’s position that implementing a new format would result in teams dropping out of the league.
The ICTA also argued that if the Mixed League was discriminatory, the Association was nevertheless protected by section 20(3) of the Code which exempts recreational clubs from claims of discrimination on the basis of age, sex, marital status or family status.
The Tribunal ruled in favour of the Applicants, finding that the composition of the Mixed League did have a discriminatory effect on women which could not be considered a bona fide requirement. The Tribunal concluded that the appropriate frame of reference for the discrimination analysis was the ICTA’s leagues and not all leagues available in the region. The Tribunal held that it would be inappropriate to suggest that discrimination was not occurring simply because similar services could be accessed elsewhere.
In the context of the ICTA’s own leagues, the decision noted that the availability of twice as many positions for men as for women constituted a prima facie case of discrimination. As women, the Applicants were protected on the ground of sex, they were adversely affected by their inability to participate at the same levels as men and being female was the only reason for their adverse treatment. The Tribunal did not endorse the Association’s argument that the format was a bona fide requirement, as it was not adopted for a purpose rationally connected to the league’s activities or purposes, nor was it adopted with the a good faith belief that the standard was necessary.
The Tribunal nevertheless considered the third step of the bona fide justification test, whether or not accommodating the Applicants would amount to undue hardship. The Tribunal found there was no evidence for concluding that changing the teams to have an even number of men and women would result in a significant drop off of local clubs which would amount to undue hardship for the ICTA. The ICTA had only presented evidence that there had been difficulty finding “competitive” or “strong” female players to fill spots in the Mixed League, not that local clubs could not find female players altogether.
The Tribunal lastly rejected the ICTA’s argument that it should be exempt from the Code because of the recreational club exception found in section 20(3) of the Code. The Tribunal distinguished the ICTA from a traditional recreational club by the fact that the ICTA was in fact an association comprised of recreational clubs, but was not itself a recreational club. Because an association of clubs only counts clubs and not individuals as its members, the Tribunal held that the exception found in section 20(3) was inapplicable in the circumstances as the exception requires members who possess human characteristics in order to apply.
Although Miller is not a decision in the context of the employment relationship, it will be relevant to employers who provide a service to its employees, client base or membership that makes a distinction based on sex. Where the provision of a service discriminates based on sex, the availability of opportunities elsewhere will not on its own suffice as a defense.
The Tribunal in Miller also held that a service-provider will not be able to raise lack of demand from one sex as a defence to a claim of prima facie discrimination. Rather, service-providers will only be able to raise demand as a factor in their favour when showing that the applicant’s proposed services constitute an undue hardship. The Tribunal cautioned against overreliance on demand, as this factor may be hard to gauge and a lack of demand may persist due to a failure to put in place the conditions that allow demand to emerge and be recognized.
Another takeaway from Miller is the distinction drawn by the Tribunal between an association of clubs and an association of individuals. The Tribunal held that the recreational club exception in section 20(3) of the Code only applies to the latter, and refused to apply the exception in this case because the ICTA was an association of recreational clubs and not a recreational club of individuals.