Gender Identity in the Workplace
In recent years, we have seen an increased recognition of the importance of maintaining workplaces that are free from discrimination. Employees are entitled to work in a non-discriminatory environment. This includes with respect to gender identity and expression. On the flipside, employers have a basic obligation to ensure their employees are not subject to adverse treatment due to their gender identity or expression.
Several cases have now been released that consider when workplace conduct may result in discrimination on the basis of gender identity and expression. These cases reveal that employers would do well to promote inclusive workplace practices that are respectful of gender identity and expression and do not result in differential treatment.
EN v. Gallagher's Bar and Lounge, 2021 HRTO 240
In this case, three former employees brought a claim alleging discrimination on the basis of gender identity, gender expression, and sex. The employer did not defend the claim.
One of the employees, EN, identified as gender queer and used they/them pronouns. The other two employees, JR and FH, each identified as non-binary trans individuals and used they/them pronouns. The employees alleged that the manager and owner, Mr. Gallagher, mis-gendered them throughout their employment. EN also produced evidence that Mr. Gallagher had referred to the staff as "trannies" to customers.
When EN requested to speak with Mr. Gallagher about these incidents, he refused, and said that he believed he had been "walking on eggshells" around them, specifically by trying to use the proper pronouns. Mr. Gallagher subsequently denied any wrongdoing and asked if EN was quitting.
Shortly thereafter, the employees each resigned from their employment, claiming that they had no choice but to leave due to the owner's dismissive attitude and failure to respond to their concerns.
The Ontario Human Rights Tribunal concluded that the owner had discriminated against the employees. It was found that the employees experienced adverse treatment during their employment, including by Mr. Gallagher using the word "trannies" - a transphobic slur - to describe the employees to customers, as well as by mis-gendering or using the incorrect pronouns when referring to the employees.
The owner was ordered to pay lost wages to the three affected employees as well as $10,000 to each employee as compensation for injury to dignity, feelings, and self-respect.
Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137
In this British Columbia case, the employee, Jessie Nelson, was a non-binary, gender fluid, transgender person who used they/them pronouns. They worked as a server at a restaurant on BC's Sunshine Coast. Prior to Jessie starting employment, it was communicated to the employer that Jessie used they/them pronouns. Upon starting employment, Jessie again advised management that it was important to them to be properly gendered in the workplace.
Although occasional mistakes were made, most staff used the they/them pronouns. The bar manager, however, maintained his distance from Jesse, used she/her pronouns, and called Jessie by feminine nicknames, such as "sweetheart", "sweetie", and "honey". After raising their concerns with the bar manager personally, to no avail, Jessie brought the issue to management. Management spoke with the bar manager, but the bar manager's behaviour did not improve. When Jessie raised the issue again with management, they were advised the issue would have to wait as management was addressing other performance concerns with the bar manager and did not want to overwhelm him.
Shortly thereafter, Jessie again raised the issue directly with the bar manager. This resulted in a heated encounter between the two, and Jessie giving the bar manager a "parting slap on the back" on their way out of the restaurant. The employer terminated Jessie a few days later. When pressed for a reason, the employer advised that Jessie had come off "too strong too fast" and "militant".
The employee filed a human rights complaint, alleging they had been discriminated against in the course of their employment.
The British Columbia Human Rights Tribunal concluded that the employee had been discriminated against. In reaching this conclusion, the Tribunal confirmed that "Trans employees are entitled to recognition of, and respect for, their gender identity and expression. The begins with using their names and pronouns correctly. This is not an 'accommodation'; it is a basic obligation that every person holds towards people in their employment." The Tribunal found that Jessie was terminated in connection with their efforts to address discrimination. Jessie was held to a higher standard of conduct than the bar manager, and the discriminatory context of the dispute was ignored by the employer.
The Tribunal ordered compensation for injury to dignity, feelings, and self-respect and that the restaurant develop a policy on personal pronouns and implement mandatory training on human rights in the workplace.
Takeaways:
These cases confirm that employers must ensure their workplace practices do not result in employees experiencing adverse treatment due to their gender identity or expression. Employers are encouraged to proactively provide training to their staff on human rights and the importance of addressing employees by their chosen person pronouns, as well as how to handle mistakes which may happen in an appropriate manner. Employees who believe they may be experiencing adverse treatment due to the gender identity or expression should speak with legal counsel.
Lee Workplace Law would be happy to answer any questions you may have about your workplace rights and obligations.
