He/She/They : Misgendering employees is a ground for Human Rights Complaint

Our pronouns are often based on appearance or name, but such assumptions are often incorrect. It is ingrained in us from childhood that there are two genders, male and female. The fact that non-binary pronouns are becoming more common as opposed to the traditional male or female pronouns shows that we have a complex picture of human gender diversity. More and more people are including identifying pronouns in their email signatures, LinkedIn handles, and social media profiles. The solution is simple, easy to use, and helps clarify the way someone identifies.

These days, there has been an increase in awareness of non-binary people’s needs in Canadian universities and corporations. Non-binary gender is now listed as a gender category in university documents. One of the top colleges for LGBTQ+ students, the University of Calgary, has now launched Sexual and Gender Wellness Week which provides support for Queers on Campus and Sexual and Gender-Based Violence. The University also allows students to change/update their legal name on file by submitting a Change of Address/Personal Information form to Enrolment Services. On-campus, there are also gender-neutral restrooms.

The Alberta Human Rights Act, amongst other things, protects Albertans from discrimination on racial, gender, religious, ancestry grounds, and sexual orientation.  This ground includes protection from differential treatment based on a person’s actual or presumed sexual orientation, whether gay, lesbian, heterosexual, bisexual, or asexual. In addition to the areas and grounds discussed above, the Act protects Albertans in the area of equal pay. The Canadian Human Rights Act added gender identity discrimination grounds in 2017.

In order to prove discrimination in employment, an applicant must demonstrate that:

• They have a characteristic protected from discrimination under the Human Rights Code;
• They have experienced adverse treatment with respect to their employment; and,
• The protected characteristic was a factor in the adverse treatment.

Human Rights Tribunals in Ontario and British Columbia have recently clarified the importance of employers respecting the preferred pronouns of their employees, as well as the possible consequences of not doing so.

In EN v Gallagher’s Bar and Lounge, 2021 HRTO 240, three employees filed applications alleging discrimination against their employer. It was reported that all three applicants identified as either genderqueer or non-binary transgender and used the pronoun “they/them”. It was requested by each employee that their employer refers to them by their preferred pronouns, but he refused. A transphobic slur was also used by the employer when speaking to customers. Despite raising these concerns with their employer, nothing was done. The applicants took the position that they had been constructively dismissed. They indicated that they did not want to experience a recurrence of the owner’s conduct or the consequences of his disregard for their privacy and safety.

Due to the lack of a response from the respondent, the Tribunal decided based on the sworn affidavits and written submissions of the applicants. The Tribunal found that the employer discriminated against the applicants based on their gender identity and expression and that the comment was made to customers in a public setting, effectively outing the applicants in a derogatory, non-consensual manner that left the applicants terrified. In addition to any lost wages, the Tribunal ordered that the employer pay each applicant $10,000.00 for injury to their dignity, feelings, and self-respect.

In Nelson v Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 is a recent BC human rights case where an employer was liable for a substantial number of damages for misgendering an employee. As explained in the complaint, the complainant is a non-binary, gender fluid, a transgender person who uses the pronouns “they/them” and alleges that their bar manager and employer discriminated against them based on their gender identity and expression. During their four weeks as a server at the restaurant, the complainant informed the general manager of their preferred pronouns and stressed how important it was for them to be gendered appropriately at work.

Although the general manager used their preferred pronouns and corrected mistakes when they occurred, the bar manager continued to use girl-oriented pronouns and left gendered nicknames, despite being asked not to by the complainant as well as others. He persisted in his conduct despite the general manager’s warnings. When the complainant confronted the bar manager about the behavior, an argument ensued, which resulted in the complainant’s termination. The complainant was told they were terminated because they came off “too strong too fast”, were too “militant”, and made people uncomfortable.

The Human Rights Tribunal held that the bar manager’s deliberate and persistent misgendering of the complainant violated the Human Rights Code (British Columbia). Further, the Tribunal concluded that the employer engaged in discrimination because, despite its commitment to an inclusive workplace and its efforts to gender-balance the complainant, it did not reasonably and appropriately address the complaint. In failing to ensure a healthy work environment, the employer failed to act when the bar manager continued to misgender the complainant. Among other orders, the Tribunal ordered the employer to implement a pronoun policy and to provide mandatory diversity, equity, and inclusion training to the respondent.

Devyn Cousineau, Tribunal Member, Human Rights Tribunal stated the following (para 49):

I have found that Buono Osteria, Mr. Buono, Mr. Kingsberry, and Mr. Gobelle discriminated against Jessie Nelson in their employment on the basis of their gender identity and expression, in violation of s. 13 of the Code. I make the following orders:

1. I declare that the Respondents’ conduct contravened s. 13 of the Code: Code, s. 37(2)(b).
2. I order the Respondents to cease the contraventions and refrain from committing the same or similar contraventions: Code, s. 37(2)(a).
3. I order Buono Osteria and Mr. Gobelle to pay Jessie Nelson $10,000 as compensation for injury to their dignity, feelings, and self‐respect: Code, s. 37(2)(d)(iii).
4. I order Buono Osteria, Mr. Kingsberry, and Mr. Buono to pay Jessie Nelson $20,000 as compensation for injury to their dignity, feelings, and self‐respect: Code, s. 37(2)(d)(iii).
5. Within three months of this decision, I order Buono Osteria to:
6. Add a statement to its employee policies that affirms every employee’s right to be addressed with their own personal pronouns.
7. Implement mandatory training, of no less than two hours, for all staff and managers about human rights in the workplace. Code, s. 37(2)(c)(i)
8. I order the Respondents to pay Jessie Nelson post-judgment interest on the damage award until paid in full, based on the rates set out in the Court Order Interest Act.

In light of these decisions, employers need to take note of how their employees communicate with them regarding their gender identities and expressions, including how they prefer pronouns. Any concerns brought to the attention of an employer regarding misgendering in the workplace should be investigated promptly since failure to do so can result in significant liability.

If you or someone that you know has a complaint against their employer, please contact our employment lawyers at Osuji & Smith Lawyers today at (403) 283-8018 or email [email protected]

AUTHOR: LYDIA IBOKO