What You Need to Know

A recent British Columbia Human Rights Tribunal (BCHRT) decision awarded $30,000 in damages to a restaurant employee due to the actions of a co-worker who repeatedly and deliberately misgendered them by referring to them using she/her pronouns and gendered nicknames. While based in BC, this decision will likely impact Courts across Canada as it establishes an obligation for employers to respond to employee disputes that involve gender identity and expression.

The Facts

Nelson is a non-binary, gender fluid person who uses they/them pronouns who worked at a Buono Osteria, a restaurant on the Sunshine Coast in British Columbia for approximately four weeks. Throughout their employment, the bar manager, Gobelle, referred to Nelson using gendered nicknames such as “sweetheart,” “sweetie,” and “honey,” and also referred to them using she/her pronouns. Nelson asked Gobelle on several occasions to use their proper pronouns, or at the very least use their name, but there was no improvement. Nelson also talked to the employer and asked them to speak to the Gobelle. After inaction from the employer regarding Gobelle’s conduct, Nelson again attempted to talk to Gobelle to request that he use their correct pronouns. That interaction became heated and culminated in Nelson slapping Gobelle on the back. Shortly after, the employer terminated Nelson without cause. 

Nelson filed a complaint under s 13 of the British Columbia Human Rights Code. The BCHRT concluded that Gobelle's actions and the employer’s response amounted to discrimination against Nelson based on gender identity and expression. The BCHRT had no difficulty concluding that Gobelle's conduct was discriminatory. They acknowledged that using proper names and pronouns of trans employees is not an accommodation but a basic obligation every person holds towards people in their employment. In their decision, the BCHRT wrote the following, which could inform many future decisions regarding trans rights: 

[82] 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 [the worker] 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.

Gobelle was aware that Nelson used they/them pronouns yet continued to refer to them using she/her pronouns and gendered nicknames.

The BCHRT also found that the employer’s response to Nelson’s concerns fell short of reasonable and appropriate and was partly responsible for the final argument between Nelson and Gobelle, which led to Nelson’s termination. The BCHRT concluded that Nelson’s gender expression and identity were factors in their termination. It acknowledged that although Nelson engaged in some aggressive or confrontational behaviour toward Gobelle, that conduct directly resulted from being exposed to a discriminatory workplace. The BCHRT also concluded there was a clear connection between Nelson’s gender identity and their termination, as they were terminated in part for how they responded to discrimination. 

Damages Awarded

The BCHRT awarded $30,000 in damages to Nelson due to the discriminatory conduct. They also ordered the restaurant to implement a pronoun policy and mandatory training for all staff and managers about diversity, equity and inclusion. 

Takeaway

Employers are obliged to respond to employee disputes involving discrimination or harassment based on gender identity and expression. The expectation is that employers respond with the same severity as they would to other instances of discrimination. 

Field Law’s employment group has helped many clients develop policies and implement training regarding diversity, equity and inclusion. If you are interested in learning more about reducing your exposure to risk in this area, contact Daisy Feehan or any member of Field Law’s Labour + Employment Group.

Link to decision: Nelson v Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137