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For years, the Great Blue Heron Charity Casino in Port Perry, Ont., had a simple policy when it came to cleaning the casino's bathrooms – male employees cleaned the men's rooms and female staff the women's.
That might have remained the case were it not for Joanne Seguin, a part-time washroom attendant who complained that the policy was discriminatory. Her complaint has turned into a five-year battle and so far she's winning.
Last year, the Human Rights Tribunal of Ontario ordered the casino to give her back pay plus $10,000 for “loss of dignity.” The company appealed, but an Ontario court has now upheld the tribunal's decision, although it ordered a review of the monetary award. The company is considering one more appeal.
“They are deliberating,” said Richard Charney, a Toronto lawyer who represented the casino.
Ms. Seguin, who has fought the case with help from her husband, Guy, just wants the saga to end. During a hearing before the Ontario court, Mr. Seguin said his wife “wishes this matter to be ‘over.'”
It all started in 2002, shortly after the casino opened. Ms. Seguin was hired on Nov. 6, 2002, as a part-time women's washroom attendant at $10.83 an hour. She was among 900 employees at the time and worked on weekends. The casino also hired Matthew Welts to work as a part-time attendant in the men's room.
On Dec. 23, 2002, Mr. Welts was given a full-time job with the housecleaning staff. The housecleaning crews were responsible for cleaning all parts of the casino, including the washrooms when there was no attendant on duty. The casino had four full-time cleaning teams at the time, each staffed by at least two men and two women.
Ms. Seguin asked Mr. Welts how he got the job since it had not been posted, according to documents filed with the tribunal. He told her that the casino needed a man because another man had quit. Ms. Seguin complained to her boss. When that didn't work, she tried another part-time position but eventually quit in May, 2003, saying in her letter of resignation that she was leaving because of a “breach of trust and conduct” by her managers. She also filed a complaint with the Ontario Human Rights Commission. Commission staff referred the case to the tribunal for a hearing.
During that hearing, casino officials acknowledged they gave Mr. Welts the job because he was a man. They argued there were sound policy reasons for having same-gender washroom cleaning and that gender was a bona fide occupational requirement for the housecleaning job. Cleaning washrooms could only take place while patrons were in the casino, they argued, and government regulations required the casino to have separate-gender bathrooms.
Adjudicator Jennifer Scott ruled that while those public-policy issues were important, they related to only one task of the housecleaning job. Not hiring Ms. Seguin as a housekeeper just because she was a woman constituted “direct discrimination on the basis of sex.” She added that the casino did not consider alternatives such as assigning male staff from one of the other teams to clean the men's room or hiring a male contract employee.
Ms. Scott awarded Ms. Seguin 50 per cent of her lost wages, plus interest, from Dec. 23, 2002, to May 23, 2003. She also added $10,000 in general damages for the humiliation suffered. “I am satisfied that the casino's failure to even consider Seguin for the full-time housekeeping position affected her self-respect, dignity, self-esteem and confidence,” she wrote.
The casino appealed to the Ontario Superior Court. In a ruling dated Sept. 10, a panel of three judges upheld Ms. Scott's decision. “While legislation mandates the provision of single-sex washrooms in some circumstances, the legislation leaves wide open the question of how those washrooms should be staffed,” the judges wrote.
The court did refer the monetary award back to the tribunal for reconsideration, ruling that the casino did not have a chance to present its case on that issue.
Ms. Seguin was unavailable and an casino official declined comment. But it now has full-time washroom attendants.
