Discrimination can be a slippery concept. In its most blatant forms — refusal to, say, rent property to someone on the basis of their gender, race, religion or lack thereof, marital status or sexual orientation, to name a few — it's pretty easy to understand. But it gets trickier when the party doing the discriminating is aided by a party who has nothing to do with the mechanics of actual discrimination.
In the 1970s, legal challenges to private clubs with discriminatory membership policies were launched south of the border. One by one, they were defeated and it was considered red-letter law that private clubs could discriminate in deciding who joined and who didn't based solely on race, religion and gender.
Twenty years later, some smart cookie said wait a minute. It's not just the private club who's discriminating. It's the state government who provided it with a liquor licence who's discriminating. It's the federal government who granted it tax-exempt status who's discriminating. Clearly those levels of government are barred from discrimination on the basis of race, religion, gender, et. al., by the Bill of Rights embedded in the U.S. Constitution.
Voilà. Suddenly private clubs had to decide whether it was more important to keep blacks, Jews and women out or continue to allow members to enjoy a drink and tax-exempt status. Reluctantly, most opened their membership to those they'd previously considered unworthy.
So what, you're probably asking, does that have to do with anything in Tiny Town? Good question.
The RMOW doesn't issue liquor licences or confer tax-exempt status. It does, however, grant zoning and create and allocate bed units, a metric every bit as valuable in our little bubble. The recent rezoning proposal in Nordic — and no, that's not what this is about — proposes to rent apartments directly to businesses. The more recent rezoning proposal put forward by Vidorra Developments for the site at the entrance to White Gold may or may not rent some apartments to business, notwithstanding the developer's preference to not follow this route.
There are whispered developments we'll be hearing about in the near future. Whether they embrace renting directly to employers or not is anybody's guess.
But they shouldn't. And the RMOW shouldn't allow them to because to do so makes the municipality complicit in discriminating against one group of employees in favour of another group of employees. And that's not a road we should go down.
So how is renting to employers instead of employees discriminatory? Under the guidelines adopted by the RMOW on Dec. 5, last year, private sector developments of employee-restricted housing have to be rental units and 100 per cent of those rentals have to be occupied by Whistler employees as defined by the Whistler Housing Authority (WHA).
WHA defines an employee as someone employed or self-employed for not less than 20 hours per week on an annual basis in a Whistler business. WHA properties also have other requirements concerning legal status in Canada, a ban on owning other property, and more. Currently, there is a one- to two-year — or longer — wait for people to rise to the top of the waitlist and have a chance to rent a WHA apartment.
Every single person on the waitlist is an employee.
If and when one of the new, private-sector, employee-restricted projects is completed, it will have to be occupied by an employee. But if those units are rented directly to an employer, who presumably will house their own employees, those lucky employees will jump the queue. To paraphrase the words of Napoleon, the Berkshire boar in Animal Farm, "All employees are equal, but some employees are more equal than others."
For the RMOW to grant bed units and allow private sector developments to favour one class of employees — those working for businesses who have the financial wherewithal or political pull to rent apartments for their employees — over another, those on the WHA waitlist, is blatantly discriminatory. "Sorry, employee on the waitlist for two years, you're just not as important as this other employee who just arrived in town."
Having heard from some of them, I have no doubt there are business owners in town who not only don't have a problem with jumping the queue for their employees but are actively lobbying the RMOW to make it happen. I understand. Times are tough and it's hard to impossible to hire people when they find out how difficult and expensive it is to find accommodation in Whistler. But that doesn't change the fact this is driven by pure self-interest. And it doesn't change the fact it's discriminatory.
So the RMOW needs to decide whether it's comfortable being a party to this form of discrimination. And, perhaps more importantly, it needs to assess whether doing so might not run afoul of the BC's Human Rights Code.
The Code prohibits discrimination based on a number of grounds. One of them, which applies only to tenancies, is lawful source of income. In other words, as long as what you do to earn a living is lawful, it contravenes the Code for a landlord to discriminate against you in the provision of housing.
So is it discriminatory for a landlord to provide housing based on the business for whom an employee works? Is the municipality complicit in that discrimination because of their roles in changing zoning to allow the development in the first place and providing the bed units for the development in the second place?
I don't know.
But I do know avoiding the issue would be as simple as prohibiting new private-sector, employee-restricted developments from renting to employers and requiring them to work with the WHA to rent to qualified employees on the waitlist.
It's fair. It's right. It should be done.
If employers want to rent market housing exclusively for their employees, fine. No problem. If employers want to build housing exclusively for their employees, fine... as long as they buy the bed units on the market. But once employers ask the municipality to be a party to assisting their business at the expense of someone else's business, not fine. Wrong.
When Whistler was young, there wasn't really a problem providing Whistler and Blackcomb and the Chateau, and any other business with the financial strength, whatever they needed to build employee housing. But that was then; this is now. There isn't much growth left in Whistler, unless we're giving up on our self-imposed limits to growth. In the mad rush to house vital employees, there are no justifiable arguments for the RMOW to help alleviate the staffing problems of one group of employers at the expense of all others and discriminate against one class of employees in favour of another.
This mistake hasn't been made yet. Let's make sure it isn't made at all.