A British Columbia case has affirmed that the correct use of gender pronouns is a basic right, and that when it comes to inclusivity in the workplace, it is not enough to talk the talk by having a policy in place – employers must walk the walk by taking prompt action to address concerns.

Failure to take reasonable and appropriate steps to address a worker’s misgendering of a transgender employee came with an expensive price tag for the employer in Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 (“Nelson”).

The complainant, a non-binary, gender fluid, transgender person who uses they/them pronouns, worked at a restaurant run by the respondents. They shared their pronouns with the general manager and spoke 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, referred to the complainant with she/her pronouns and gendered nicknames like “sweetheart” and “honey”, despite being asked to stop by the complainant and others. After the complainant made suggestions to greet patrons with gender-neutral terms, the bar manager became unhelpful and hostile towards the complainant.

Despite the general manager speaking with the bar manager about his behaviour, it continued. Following a heated dispute during which the complainant attempted to address the behaviour with the bar manager, their employment was terminated by the executive chef and general manager. When they asked why, the complainant was told they were coming on “too strong too fast”, were being too “militant”, and were not a “good fit” with the rest of the team.

The complainant filed a complaint with the BC Human Rights Tribunal against the restaurant as well as the bar manager and others, alleging that they had been discriminated in their employment on the basis of their gender identity or expression. The Tribunal held that the bar manager’s deliberate and persistent misgendering of the complainant breached the Code, noting that

Trans employees are entitled to recognition of, and respect for, their gender identity and expression. This 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…

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. Especially for trans, nonbinary, or other noncisgender people, using the correct pronouns validates and affirms they are a person equally deserving of respect and dignity.

The Tribunal also found that the employer had engaged in discrimination. Despite demonstrating commitment to an inclusive workspace through their harassment policy and taking some steps to ensure the complainant was properly gendered at work, the employer’s response to their concerns fell short of what was reasonable and appropriate. It failed to take further action when the bar manager’s behaviour did not change after being instructed to use correct pronouns. In failing to do so, the employer failed to ensure a healthy work environment. The complainant’s gender identity was also a factor in their dismissal – the decision was made in connection with their efforts to address discrimination in the workplace, and the employer’s reasons were clearly connected to their gender identity.

The Tribunal ordered the respondents to pay the complainant $30,000 in damages, and ordered the employer to implement a pronoun policy and mandatory diversity, equity and inclusion training.

Nelson sends a clear message that everyone has a right to be addressed in a respectful manner, that gender identities or expressions communicated by employees must be respected and that any misgendering in the workplace must be addressed swiftly and effectively. Key takeaways are:

  • A commitment to inclusivity should be backed with proactive steps and prompt responses to any inappropriate behaviour.
  • Prior to dismissing an employee in the context of a discriminatory work environment, employers should carefully consider the circumstances to ensure there is no connection between the termination and the discrimination.

 

 

 

 

 

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