The BC Human Rights Tribunal (“Tribunal”) has made it clear in numerous decisions that discrimination in the workplace will not be tolerated. Specifically, if a person who falls under a protected characteristic is treated differently where they work, this can amount to discrimination.
A very recent Tribunal decision (read here: 2021bchrt137) strongly highlights the importance of maintaining workplaces free from the harm of discrimination and the impact and discriminatory effect of misgendering an employee.
Facts of the Case
In May of 2019, Jessie Nelson began working at the Buono Osteria restaurant, introducing themself as a transgender person – an act of courage because transgender people in Canada face a disproportionate amount of discrimination. Jessie wanted to be addressed by their fellow employees using the pronouns “they” and “them”. Their request to be addressed using they/them pronouns was ignored and even led to retaliation by one particular employee, Brian Gobelle. Brian went out of his way to refer to Jessie as “sweetie”, “sweetheart”, or “honey”, which are condescending terms to use against cis-female employees, and even more so against a person who does not identify as female. Brian would also act uncooperatively with Jessie at work and would often ignore Jessie. Jessie attempted to convince their employer to address Brian’s harmful and discriminatory conduct, and when those requests were ignored, Jessie attempted to address it themselves. After an attempt at a direct conversation about the respectful use of pronouns, Jessie’s employment was terminated.
The restaurant felt they were able to terminate Jessie without cause because Jessie had only worked with them for four weeks, and was still within their three-month probationary period. Tribunal Member Cousineau clears up Buono Osteria’s false assumption of termination by reminding readers that from a human rights perspective, the probationary period in employment contracts is irrelevant. Employers cannot contract out of their duties under the Human Rights Code (“Code”). Further, Member Cousineau instructed that discrimination is not required to be the sole motivator for termination, or even the most prominent motivator for a claim of discrimination to be established. If someone is terminated, and there is evidence that the termination can be connected to discriminatory reasoning, this is sufficient to violate the Code.
The Responsibility of Employers
Buono Osteria was found to have violated the Code because of their treatment and inaction towards Jessie’s numerous complaints of discrimination. The Code obliges employers to respond to allegations of discrimination in a timely manner and a failure to do so in a way that is reasonable or appropriate can amount to discrimination. An investigation of discrimination on its own can amount to discrimination, especially if lack of concern and an untimely response is evident, as was the case with Buono Osteria’s management.
Employment is considered in law as central to a person’s identity and dignity. It is because of employment’s significance to the individual that cases that involve the termination of employment have often attracted the top end of the Tribunal’s damages awards.
Jessie described how their employment at Buono Osteria impacted their sense of self and why the use of preferred pronouns is vital to them. Jessie said that their pronouns are “fundamental to me feeling like I exist”, and when people use the correct pronouns, they can feel safe and enjoy the moment. When people do not use the right pronouns, however, that safety is undermined and they are effectively forced to repeat and plead to the world: I exist.
A workplace can be considered accepting of transgender employees simply by having an honest intention to be respectful, and by using a person’s preferred pronouns. What is not simple is the impact that misgendering a person can have. Member Cousineau discusses that 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. Whereas purposefully misgendering someone is an act of discrimination and disrespect, and is an attack on the validity of their lived experience.
Every person has a right to being addressed using their proper pronouns. Every person has a right to a workplace free of discrimination. Proper pronoun use under the Code is not considered an accommodation, but a basic obligation.
Member Cousineau awarded Jessie $30,000 in damages in compensation for injury to their dignity, feelings, and self‐respect. The Tribunal has significant discretion in deciding the amount of damages needed to compensate a complainant for their injuries. The purpose of these awards is compensatory, and not punitive. In exercising their discretion, the Tribunal generally considers three broad factors:
The nature of the discrimination;
The complainant’s social context or vulnerability, and;
The effect on the complainant.
In this case, the nature of the discrimination was purposefully inconsiderate and harmful. It was not an honest mistake or even a poor attempt at being respectful. It was instead, a blatant disregard of another’s dignity for the sake of nescient self-preservation.
Unfortunately, the vulnerability of transgender people in Canada is prominent. Statistics Canada reported in 2020 that, “transgender Canadians were more likely than non-transgender (cisgender) Canadians to report experiencing violent victimization since the age of 15. They were also more likely to report experiencing inappropriate sexual behaviours in all settings covered by the survey—in public, online and at work—than their non-transgender peers”. It is important for people to feel safe and respected at their workplace, at a minimum. Recognizing that transgender people face greater threats to their person should embolden every employer to ensure they are creating environments that are not just tolerable but protective of their employees.
The effects of the discrimination Jessie experienced at their work resulted in their feeling like they didn’t exist and they were unsafe. Member Cousineau put it succinctly when she said, “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.”
Jessie’s case has worked to promote the importance and impact of using peoples’ preferred pronouns.
It has also served as a warning to employers in British Columbia that discrimination, whether it be latent, dismissive or purposeful, will not go unnoticed or unpunished.
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