A recent lawsuit out of New York state against the Canadian company PornHub provides a tongue in cheek reminder to employers that the provision of services in Ontario must not discriminate based on disability.

GlobalNews ran an article last week about a New Yorker who launched a claim against PornHub and several sister companies alleging that their services discriminated against him on the basis of disability. The plaintiff is deaf. He alleged that the Montreal based company was in violation of Americans with Disability Act because they did not provide closed captioning for most of their videos. In particular the article noted:

[The plaintiff] claims it’s hard for him to enjoy many Pornhub videos because he can’t keep up with the conversation. He couldn’t follow the plot of a police interrogation or a disciplinary moment involving a babysitter, according to the court documents obtained by TMZ. He saw no point in signing up for Pornhub’s premium subscription services because those videos do not accommodate people who are deaf or hearing impaired.

Pornhub added 6.83 million new videos in 2019. At the time of the GlobalNews article, only 410 videos were listed as “closed captions”. It remains to be seen if the plaintiff will be successful in his claim.

While the facts of this case might be funny to some, it is an important reminder for employers in Ontario who provide services to the public. Provincially regulated businesses are subject to the Ontario Human Rights Code. Section 1 of the Code dictates the following obligation:

Services

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.  R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1); 2012, c. 7, s. 1.

The Ontario Court of Appeal has “recently” provided a useful review of what elements a plaintiff needs to establish a finding of discrimination under the Code. In Peel Law Association v. Pieters, 2013 ONCA 396 the Court affirmed the following test:

[T]o demonstrate prima facie discrimination, applicants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.

Once an individual passes this initial threshold, the business defending the claim must provide evidence that this was not the case. As the Court of Appeal succinctly stated “the respondent faces the tactical choice: explain or risk losing.”

Interestingly, a similar issue appears to have been dealt with by the Ontario Human Rights Tribunal back in 2006. A trio of deaf individuals filed complaints against the Famous Players movie franchise for failing to provide adequate close caption services to the patrons. The matters were subject to several interim decisions but after a quick review, it does not look like a final decision was ever reached.

Most businesses do not intend to discriminate against prospective customers. However, the Code’s focus is on the effect of the discrimination. Intent does not matter. Claims under the Code bring significant risk to businesses in Ontario. Litigation is expensive. The Human Rights Tribunal has broad remedial powers can require businesses to implement corrective action. Even if the business is ultimately successful, the reputational impact of a case that catches the media’s attention can be devastating.

I suspect that from a business perspective, Pornhub will be just fine. However, this case should remind employers to carefully review what services they provide and whether they satisfy their obligations under the Code. Good risk management is like porn: you’ll know it when you see it. There is no one size fits all solution but these risks can be mitigated against with appropriate risk management practices and proactive engagement.

See: Deaf U.S. man sues Pornhub over lack of closed captioning in porn videos

See: Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII)

Devan Marr

As the progeny of Canadian diplomats, Devan grew up in five different countries before returning to Canada. It was somewhere between Frankfurt and Vienna where Devan first learned to ride a bicycle. He is now a cycling fanatic: Devan is also the firm’s resident employment law fanatic. Got an employment practices liability policy question? Devan has your answers.

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