Written on behalf of Peter McSherry
In a recent Human Rights Tribunal of British Columbia decision that made headlines, a restaurant worker was awarded $30,000 in damages after the bar manager consistently refused to address the worker by their correct pronouns. The restaurant owners, in addition to the bar manager, were also found liable for terminating the worker following complaints about the manager’s conduct.
Worker Called Wrong Pronouns by Manager
The complainant, J, began working as a server at a restaurant in British Columbia beginning on May 27, 2019.
J is a non-binary, gender fluid, transgender person who uses they/them pronouns.
During the time of J’s employment at the restaurant, the restaurant’s bar manager persistently referred to J with she/her pronouns and with gendered nicknames like “sweetheart”, “honey”, and “pinky”. This occurred despite the fact that the manager had been informed of the proper pronouns used by the worker. When J asked the bar manager to stop, he did not.
Worker Files Human Rights Complaint for Use of Wrong Pronouns and Nicknames
Subsequently, J asked management to intervene on the issue, but was told to wait.
Later, J again tried to speak to the bar manager about the issue and the discussion became heated. Four days later, on June 28, 2019, J was fired.
When asked to explain the termination, one of the restaurant’s owners said that J had simply come on “too strong too fast” and was too “militant”.
In March 2020, J filed a complaint with the Human Rights Tribunal of British Columbia, alleging that the bar manager’s conduct, as well as the employer’s response, amounted to discrimination in employment based on gender identity and expression, in violation of s. 13 of the Human Rights Code (the “Code“).
Tribunal Rules That Manager’s Conduct Amounted to Discrimination
The first issue before the Tribunal was whether the bar manager’s conduct towards J amounted to discrimination.
Ultimately, the Tribunal ruled that the bar manager’s conduct did amount to discrimination against J, stating:
“All employees have the right to a workplace free of discrimination. 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….
I am satisfied that [the bar manager]’s conduct towards [J] amounted to discrimination. He was told, by his managers and directly by [J], that they are trans, non-binary, and use they/them pronouns. They are not a woman. And yet, he persisted in referring to them with female pronouns and gendered nicknames. This adversely impacted [J] in their employment based on their gender identity…
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, non-binary, or other non-cisgender people, using the correct pronouns validates and affirms they are a person equally deserving of respect and dignity. As [J] explained in this hearing, their pronouns are “fundamental to me feeling like I exist”. When people use the right pronouns, they can feel safe and enjoy the moment. When people do not use the right pronouns, that safety is undermined and they are forced to repeat to the world: I exist.”
Additionally, the Tribunal held that the bar manager’s use of nicknames towards J also amounted to discrimination and had undermined, erased, and degraded J’s gender identity in their place of work.
Tribunal Finds That Employer’s Response Was Discriminatory
The other issues the Tribunal addressed were whether the employer’s response to J’s complaints was reasonable and appropriate and whether J’s gender identity and expression had been a factor in J’s termination.
First, the Tribunal held that the employer’s response to J’s complaints about the bar manager’s conduct fell short of what was required by the Code.
In the result, the Tribunal, therefore, upheld J’s complaint against the restaurant, the bar manager and the restaurant owners. In total, the Tribunal ordered them to pay $30,000 as compensation for injury to J’s dignity, feelings, and self-respect.
Contact Guelph Employment Lawyer Peter A. McSherry for Experienced Advice on Discrimination in the Workplace
The Ontario Human Rights Code prohibits discrimination and harassment based on race, colour, ethnic origin, religion, gender, age, disability, sexual orientation, marital status and family status. If you feel that your rights have been violated, seeking the advice of an experienced and informed employment lawyer can help you understand your options to remedy the situation. At Peter A. McSherry Employment Lawyer in Guelph, I have represented clients in all areas of employment since being called to the Ontario Bar in 1997. When you work with me, you will meet and discuss your case only with me. I provide each of my clients with compassionate care, attentive service and the efficient resolution of legal issues. Contact me today to schedule an initial consultation by calling my office at 519-821-5465 or by e-mailing me. Harassment and discrimination cases are not to be taken lightly. Your rights deserve protection, and you deserve to work in a non-hostile work environment.