In Zhang v The First Org Ltd (Strike Out) [2024] NZHRRT 11 the NZ Human Rights Review Tribunal has considered a claim of indirect marital status discrimination in relation to the serving of hotpot.
The Tribunal states
[1] Red Hill Restaurant (Red Hill) serves hotpot. On its menu Red Hill specifies that a
minimum of two diners are required to order this dish. Mr Zhang alleges that this
requirement or policy amounts to indirect marital status discrimination as it is less likely
that a single person would be dining with another person who is prepared to share the
cost of a hotpot meal.
[2] Mr Zhang accepted that a person dining alone can still order hotpot but is required
to pay the same price for that dish which is designed to be shared by (at least) two people.
However, he says that charging a person eating alone the same price as two people eating
hotpot is not justified. He said that previously he had been able to purchase hotpot for
one at Red Hill and accepted that charging a bit over half the price for two diners would
be justified (and therefore not discriminatory).
[3] Red Hill denied that its actions were discriminatory. It said that the policy applied
to everyone and was not limited to customers with a particular marital status. It admitted
that it had previously allowed one paying customer to purchase a single portion of hotpot
for less than the price of the menu item. However, in his affidavit supporting the
application, Yutian Liu said that due to rising costs it was not economical for Red Hill to
prepare a hotpot for one paying customer only.
[4] Red Hill applied to strike out the claim on the basis that it:
[4.1] Disclosed no reasonable cause of action;
[4.2] Was frivolous, because the policy was common to many restaurants and
because Mr Zhang’s essential complaint was about the quantum of the additional
charge paid for those eating alone rather than discrimination per se;
[4.3] Was vexatious, because it was brought to annoy or irritate Red Hill after it
changed its policy; and
[4.4] Was an abuse of process because it was manifestly groundless and without
foundation.
[5] Red Hill further argued that it would not be inappropriate to strike out the proceeding
as there was no reasonable prospect of success, and that Mr Zhang’s right of access to
the Tribunal was outweighed by the desirability of freeing Red Hill from the burden of
defending groundless litigation.
[6] The application is being dealt with on the papers pursuant to s 104(4A) of the
Human Rights Act 1993 (HRA). The parties were given an opportunity to comment on
whether it should be dealt with in this way and neither raised any objection.
...
[14] The prohibition against discrimination in the provision of restaurant services is set
out in s 44 of the HRA.
44 Provision of goods and services
(1) It shall be unlawful for any person who supplies goods, facilities, or services to
the public or to any section of the public—
(a) to refuse or fail on demand to provide any other person with those goods,
facilities, or services; or
(b) to treat any other person less favourably in connection with the provision
of those goods, facilities, or services than would otherwise be the case,—
[15] Given the definition of marital status in s 21(1)(b) of the HRA, we have taken the
status of single to be those who are not married, in a civil union or in a de facto relationship.
[16] Mr Zhang accepts that Red Hill did not decline to provide hotpot to him because he
is single. Nor does he claim it directly treated him less favourably for that reason. Rather
his claim is its charging policy has the effect of treating him differently and is indirectly
discriminatory by virtue of s 65 of the HRA.
[17] The prohibition against indirect discrimination in s 65 reads:
65 Indirect discrimination
Where any conduct, practice, requirement, or condition that is not apparently in
contravention of any provision of this Part has the effect of treating a person or
group of persons differently on 1 of the prohibited grounds of discrimination in
a situation where such treatment would be unlawful under any provision of this
Part other than this section, that conduct, practice, condition, or requirement
shall be unlawful under that provision unless the person whose conduct or
practice is in issue, or who imposes the condition or requirement, establishes
good reason for it.
[18] That section has been described by the Court of Appeal decision in Ngaronoa v
Attorney-General in the following terms: [119] Indirect discrimination under s 65 of the Human Rights Act can arise when a
criterion in a law or policy, which is not on its face discriminatory, corresponds to a
feature (or lack thereof) of all or part of a group and results in that group being treated
differently on a prohibited ground. A Canadian example we will refer to is a policy in a
public health system which does not fund the provision of translation services to deaf
patients who could otherwise use state care. The provision did not mention deafness,
and did not explicitly exclude deaf patients from the benefit of state care, but a failure
to provide translation services to deaf patients effectively denied them equal access to
important benefits that were available to other persons who were not deaf. …
[19] The issues the Tribunal needs to consider are:
[19.1] Does the indirect discrimination claim disclose a reasonable cause of
action? and
[19.2] Is the claim frivolous or vexatious?
[20] We first consider whether the claim is frivolous.
[21] The right to be free from discrimination is a fundamental human right. To avoid
trivialising the non-discrimination right, the disadvantage arising from differential
treatment, when viewed in context, must not be theoretical, innocuous or de minimus.
[22] In this case, while Red Hill’s menu states that the hotpot for the specified price is
for a minimum of two people, the plain inference is that when hotpot is ordered the diner
will receive sufficient food for two people in return for the price payable. If anyone wants
to order that quantity of hotpot for that price, there is no prohibition preventing any diner
from doing so. Had Red Hill simply set out the price for hotpot, no exception could be
taken. Any discrimination alleged is therefore merely theoretical and does not give rise to
material disadvantage.
[23] As a person dining alone, Mr Zhang objects to paying the full price for a serving of
hotpot. He claims that he should be able to order a single portion of hotpot in return for
which he agrees it is reasonable to pay more than half the price of the minimum two-
person portion on offer. Given Mr Zhang accepted it would be appropriate to charge some
additional amount for an individual serving size of hotpot, Red Hill argued that Mr Zhang’s
principal complaint is about the amount he is required to pay, rather than about
discrimination per se and is frivolous for this reason.
[24] We agree that the essence of this claim is about the minimum charge for a serving
of hotpot and how large that serving should be. For Mr Zhang to claim that the non-
discrimination right is engaged by this question trivialises the right’s importance.
[25] The claim’s overreach is demonstrated by the fact that, if successful, it would permit
members of other groups such as Pacific people and Māori who are more likely to be on
a lower income than the national average, or women who are more likely to be on a
lower income than men, to also allege that restaurants which fail to serve them smaller
portions of food at lower prices amounts to discrimination. Further, while any commercial
justification put forward by the restaurant would likely prevail, restaurant owners would still
face the burden of responding to such claims (as would the Tribunal).
[26] Mr Zhang’s claim lacks the seriousness necessary for it to proceed to trial. Having
reached that decision, we consider the claim should be struck out on the ground that it is
frivolous.
27] Having struck the claim out on this basis, it is unnecessary to consider whether the
claim is also vexatious because it was designed to annoy or irritate Red Hill after it
changed its policy.
[28] For completeness, however, we consider whether the claim should be struck out
on the basis that it fails to disclose a reasonable cause of action.
[31] Mr Zhang’s claim contains no particulars to support his contention that Red Hill’s
policy regarding the two-person minimum price for a hotpot disproportionately affects
those who are single or that it imposes a material disadvantage on single diners. Instead,
the claim proceeds on the assumption that this is the case. We do not consider this is an
appropriate matter over which to take judicial notice.
