"Like a name, pronouns are a fundamental part of a person’s identity. They are a primary way that people identify each other. Using correct pronouns communicates that we see and respect a person for who they are.” - Nelson v Goodberry Restaurant Group Ltd. Dba Buono Osteria and others, 2021 BCHRT 137 at 82

 

Introduction

On March 30, 2021, the Human Rights Tribunal of Ontario (the “HRTO”) held in EN v Gallagher’s Bar and Lounge, 2021 HRTO 240 (the “Gallagher Decision”) that employees who were subject to transphobic slurs, misgendering, and outing by their employer were discriminated against in their employment on the basis of gender identity, gender expression and sex. Similarly, on September 29, 2021, the British Columbia Human Rights Tribunal (the “BCHRT”) held in Nelson v Goodberry Restaurant Group Ltd. Dba Buono Osteria and others, 2021 BCHRT 137 (the “Goodberry Decision”) that misgendering employees in the workplace amounts to discrimination on the basis of gender identity and expression. Both decisions are noteworthy since they directly tackle the misuse of gender pronouns in the workplace.

The Gallagher Decision

EN, JR and FH were employees of Gallagher’s Bar and Lounge. They each identified as genderqueer or as a non-binary trans person. The employees, who refer to themselves using they/them pronouns, requested that the restaurant and its owner/manager do the same. In their human rights applications, each employee alleged that their manager refused to use their correct pronouns and equated their request to do so to “walking on eggshells.”

The employees further alleged that the manager was overheard referring to them using a transphobic slur while socializing with customers at the restaurant. When the employees raised their concerns over his use of a slur, the manager denied using it and refused to address their concerns any further.

The employees quit their employment and filed human rights applications against the restaurant and the owner/manager. Neither respondent responded to the applications. Therefore, the Respondents were deemed to have accepted the allegations. The HRTO held that the restaurant’s former employees had experienced adverse treatment in the course of their ‎employment on the basis of their gender identity, gender expression and sex, amounting to their constructive dismissal. The HRTO’s key findings, which were based on the employees’ uncontested evidence, can be summarized as follows: 

• Genderqueer and non-binary trans people are a historically disadvantaged group protected from ‎discrimination under Ontario’s Human Rights Code;
• The transphobic slur uttered by the owner/manager was made in a public setting to strangers/customers in the workplace, ‎effectively outing the employees and making them fear for their safety;‎
• The owner/manager’s failure to adequately respond to their concerns and investigate further ‎constituted an adverse impact;‎
• The former employees’ loss of employment was the result of feeling as if they had no choice but to ‎leave the workplace, was another form of adverse impact; and
• Misgendering or the use of incorrect pronouns was found to be adverse treatment with respect to the former employees’ employment, but the HRTO noted that no particulars were provided regarding the misgendering allegations.

The HRTO awarded each employee lost wages and $10,000.00 as compensation for injury to dignity, feelings, and self-respect. While the HRTO accepted that misgendering ‎or the use of incorrect pronouns was discriminatory in this instance, it was unable to factor this finding into ‎its remedial awards due to lack of particulars.‎

The Goodberry Decision

The complainant in Goodberry was also a former employee of a restaurant, Buono Osteria. The restaurant was run by two of the personal respondents, namely, two co-directors who acted as the general manager and the executive chef, respectively. The third personal respondent was the bar manager at Buono Osteria. The complainant identified as a non-binary, gender fluid, transgender person and used they/them pronouns. The complainant had shared their pronouns with the general ‎manager and had spoken with him about how important it was to them to be properly gendered. The general manager was diligent in using the right pronouns and correcting staff who used the ‎wrong pronouns. The bar manager, however, continued to refer to the complainant using incorrect pronouns ‎and gendered nicknames, such as “sweetie” and “honey”. 

After the complainant suggested at a staff meeting that patrons be greeted in gender-neutral language, the bar manager grew visibly agitated and hostile towards the complainant.‎ Although both the executive chef and the general manager spoke to the bar manager about his behaviour, the bar manager continued to demonstrate “specific animus” towards the complainant. ‎Following a heated dispute with the bar manager about his persistent misgendering, the complainant’s employment was terminated. When the Complainant pressed for a reason for their termination, they were told that they came on “too strong too fast,” and were too “militant”, resulting in the team feeling uncomfortable.  

The BCHRT held that the complainant had been discriminated against in their ‎employment on the basis of their gender identity or expression. The BCHRT’s key findings can be summarized as follows:

• Trans employees are entitled to recognition of, and respect for, their gender identity and expression, which begins with using their names and pronouns correctly. This is not an accommodation, but a basic obligation that every person holds towards people in their employment;

• The persistent misgendering of the complainant despite numerous attempts to stop that conduct harmed the complainant in their employment in relation to their gender identity;
• The employer failed to adequately investigate and respond to the discriminatory conduct after the bar manager refused to use the complainant’s correct pronouns as instructed. It was not fair to the complainant for the bar manager to be given “a few chances” to correct his behaviour despite the bar manager’s refusal to do so. The bar manager’s duty not to discriminate against a co-worker should have taken immediate and urgent precedence; and
• The complainant's ‎gender identity was a factor in their dismissal, which arose as a result of the complainant’s effort to address discrimination in the workplace. In dismissing the complainant, the employer had wrongly cast the complainant as the “angry instigator” and ignored the discriminatory context of the dispute. 

The BCHRT ordered the respondents to pay the complainant $30,000 as compensation for injury to dignity, feelings, and self-respect. The employer was also ordered to implement a pronoun policy and mandatory diversity, equity, and inclusion training.

Key Takeaways from Goodberry and Gallagher

While neither Ontario nor British Columbia human rights legislation specifically refers to misgendering or the incorrect use of pronouns as a form of discrimination, the ‎HRTO and BCHRT were clear that persistent misgendering and incorrect pronoun usage can ‎constitute adverse treatment amounting to discrimination in employment. 

Both the Gallagher and the Goodberry decisions send a clear message that gender identities or expressions communicated by employees must be respected. Unlike Gallagher, which was decided on the basis of uncontested (and somewhat incomplete) evidence, Goodberry was issued following a full hearing on the merits. The lack of particularity and evidence with respect to the misgendering allegations in Gallagher appears to have resulted in a more restrained award of damages. Goodberry awarded significant damages and issued an order against the employer to institute a pronoun policy and mandatory training. The HRTO, however, did not grant damages specifically because of misgendering due to lack of particulars. Future cases may provide further guidance on available monetary and non-monetary remedies for misgendering in British Columbia and Ontario, including additional insights into the extent to which a respondent's intention to misgender may or may not affect the remedies awarded in misgendering cases.

Practical Tips for Organizations

Notwithstanding their differences, both Gallagher and Goodberry underscore the obligation of employers and management personnel to respect employees’ gender identities and expression, which obligation includes ensuring that correct pronouns and names are used in the workplace by all employees and management personnel.

In Goodberry, it is significant that the tribunal framed this obligation as a “basic right and not an accommodation.” Arguably, the tribunal is asserting that transgender and other gender non-conforming individuals should expect to have their gender identities and gender expression respected and recognized by an organization without having to ask for accommodation. 

This accessibility approach (which is usually discussed in the context of disability) requires an organization to be proactive and implement policies and practices that contemplate the diversity of gender identity and gender expression inherent in our society. Importantly, such an approach eliminates the need for gender nonconforming individuals to announce and explain their identities - a negative side effect of accommodation - which the tribunal in Goodberry acknowledged is a daily struggle for members of this equity-seeking group. 

Organizations should take the lead from the Tribunal in Goodberry and implement policy and practices that, not only seek to remove existing barriers to gender inclusivity but also address the particular needs and vulnerabilities of transgender and gender nonconforming individuals. 

What then should an organization’s pronoun policy address? And what best practices should it strive to entrench? If we are to learn from the mistakes made by the employers in Goodberry and Gallagher, your pronoun policy should, at the very least, speak to the following: 

• Regular education and training of staff and management personnel on equity, diversity, and inclusion in the context of gender identity and gender expression. In Goodberry the tribunal recognized that “for many people” using gender neutral pronouns involves unlearning “habits of a lifetime” and that fear of misgendering one’s transgender co-workers could lead to their further alienation and exclusion in the workplace. Consequently, this education and training should be included in the onboarding process as well as in long-term professional development strategies.
• The use of gender neutral language in all of the organization’s policies and communications (internal and external). For example, an organization could proactively encourage and support the inclusion of personal pronouns in email signatures, staff directories and nameplates for office doors.
• A complaint resolution process that is equipped to deal with complaints of misgendering, the use of transphobic slurs, and other forms of discrimination on the basis of gender expression and gender identity. First, the process must treat complaints of this type with the same urgency as complaints involving other types of misconduct. The BCHRT in Goodberry made the point that discriminatory harassment, such as intentional misgendering, can be as harmful as physical violence, and should not be treated as less serious. Second, the process should also take into consideration the lived experiences of, and vulnerabilities faced by transgender and gender nonconforming individuals because of the marginalization they continue to encounter within the broader society. After all, these are the metrics that inform the tribunal’s assessment of the adverse impact of discrimination on an individual. For example, an organization may wish to ensure that the process is trauma-informed and maximizes respect for privacy and confidentiality in relation to the individual’s transgender identity and history.

Further guidance can be found in the Ontario Human Rights Commission’s “Policy on preventing discrimination because of gender identity and gender expression.” Appendix C of the policy contains a checklist of best practices, which includes practices such as gender-neutral dress codes, guidelines and individualized support for transitioning employees, gender-neutral washrooms and facilities.

Disclaimer: This article provides only general information about legal issues and developments, and it is not intended to provide, nor does it provide specific legal advice. The views expressed in this article are the authors’ alone, and they are not the views of their respective employers.

About the Authors

(listed in no particular order)

• Giovanna Di Sauro (she/her)

Giovanna practices labour, employment and human rights law in Toronto with the global law firm, DLA Piper (Canada) LLP. She assists local and international clients with navigating both day-to-day and complex workplace issues. She is also a member of the SOGIC Executive. 

giovanna.disauro@dlapiper.com | vCard

• Tamara J. Sylvester (one/they/them)

Tamara is a lawyer working in the Human Rights Services Office at Ryerson/ X University. In addition to conducting investigations into human rights and sexual violence complaints at the University, one provides education and training on the University’s human rights and sexual violence policies. One is also a member of the SOGIC Executive and the SOGIC Section Editor.

tjsylvester@ryerson.ca 

• Nicky Kim (she/her)

Nicky Kim graduated from Osgoode Hall Law School in 2021. Prior to law school, she obtained an Honours Bachelor of Arts degree in International Development with a minor in Politics, Law, Society at McGill University. Currently, Nicky is a Student-at-Law at DLA Piper (Canada) LLP and seeks to develop her legal practice in the areas of litigation and labour and employment law.

nickyyujeongkim@outlook.com

This article originally appeared on the OBA’s SOGIC Section Articles page.