Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group ([email protected])

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Human rights complaints and awards against employers have been increasing over the last couple of years. This very recent decision from the BC Human Rights Tribunal shows that the implications of willfully ignoring an employee’s pronouns or gender identity can be costly for an employer (Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137).

In this 42-page decision, the Tribunal found that the employee, Jessie Nelson, a non‐binary, gender fluid, transgender person who uses they/them pronouns, was terminated in retaliation when they complained of discrimination from their employer and a colleague. The Tribunal found that the Employer terminated them unfairly for asking managers and co-workers to call them by their preferred pronouns, and ordered the Employer to pay $30,000 in damages.

BACKGROUND - WORKPLACE DISCRIMINATION

The Employee was hired as a server for Buono Osteria, a restaurant in a small town on BC’s Sunshine Coast, in May 2019, and worked there for about four weeks. At the time of hiring, the general manager (one of the Respondents named in the complaint) was aware that the Employee used they/them pronouns, and was supportive of them and assisted with training staff on proper use of pronouns.

The bar manager (another Respondent), however, began to refer to the Employee by nicknames such as “pinky” – reference to their pink hair, “sweetheart”, “sweetie” and “honey.” When he used pronouns, the bar manager referred to the Employee as she/her. The Employee notified the Employer they found this very hurtful, and experienced the nicknames as offensive, degrading, and minimizing.

The Employer talked to the bar manager regarding this behaviour and asked him to use the correct pronouns or simply address the Employee by their name instead, but the behaviour didn’t change and got worse. Due to management inaction, the Employee attempted to address this conduct directly with the bar manager in a heated conversation that resulted in the Employee slapping the bar manager on the back. A few days later, the Employer terminated the Employee without cause or notice, during their probation period.  

ANALYSIS

The issue in this case was exacerbated as management was notified of the deliberate misgendering and did not respond in a reasonable or appropriate manner. In fact, the employee was terminated, partially for “coming on too strong” and being “militant” on the issue of trans inclusion. The Employer felt the Employee didn’t “fit in” and couldn’t work with the bar manager especially after the physical incident, so they made the decision to keep the bar manager and terminate the Employee.

The Employee alleged, and Tribunal agreed, that the bar manager’s conduct towards them, and the employer’s response, amounts to discrimination in employment based on their gender identity and expression, in violation of s. 13 of the Human Rights Code [Code]. The Tribunal had to consider the following issues: 

1. Did the bar manager’s conduct towards the Employee in the workplace amount to discrimination?
2. Was the employer’s response reasonable and appropriate?
3. Was the Employee’s gender identity and expression a factor in the termination of their employment?

Conduct of the Bar Manager

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 is not an ‘accommodation’, it is a basic obligation that every person holds towards people in their employment: BC Human Rights Tribunal v. Schrenk, 2017 SCC 62 [Schrenk].

The Tribunal found that the bar manager’s conduct amounted to discrimination. It went further to explain the importance of the use of they/them pronouns, and the effect and consequences that not using them has on a trans, non-binary person.

Paragraph 82 explains further:

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 Jessie Nelson 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.

At paragraph 83 and 84:

I appreciate, as the respondents point out, that for many people the concept of gender‐ neutral pronouns is a new one. They are working to undo the “habits of a lifetime” and, despite best intentions, will make mistakes. Unfortunately, this learning is done at the expense of trans and non‐binary people, who continue to endure the harm of being misgendered.

Human rights law is concerned not with intentions, but with impacts: Code, s. 2; Schrenk at para. 88 (per Abella J, concurring). This does not mean, however, that intention is irrelevant. A person’s intention can go a long way towards mitigating or exacerbating the harm caused by misgendering. Where a person is genuinely trying their best, and acknowledges and corrects their mistakes, the harm will be reduced. This is evidenced by Jessie Nelson’s response to mistakes made by Mr. Kingsberry, who proactively took steps to correct himself and make the workplace more inclusive. These mistakes, though they may have been painful, did not lead them to file a human rights complaint. As they explained in this hearing, “I don’t expect perfection around my pronouns; I never have.” On the other hand, where a person is callous or careless about pronouns or – worse – deliberately misgenders a person, the harm will be magnified. This was the case with Mr. Gobelle.

The Use of Nicknames in Work Settings

At paragraph 86, the Tribunal found that nicknames such as “sweetie”, “sweetheart”, and “honey” have no place in a professional setting. “When used by a man towards a woman, the effect is infantilizing and patronising, and reinforces gendered hierarchies” (at para. 116). In this case, there was an added layer of harm by the implicit messaging that they were regarded and treated as a woman. This undermined, erased, and degraded their gender identity in their place of work. This was discriminatory.

The Employer's Response

The Tribunal found that management was aware of the discriminatory conduct, and as the employer, it was obliged to respond.

The Tribunal summarized the employer’s obligations in these circumstances as follows:

… employers have obligations under the Code to respond reasonably and appropriately to complaints of discrimination... This includes a duty to investigate.

Because the Code obliges employers to respond to allegations of discrimination, a failure to do so in a way that is reasonable or appropriate can amount to discrimination.... In particular, an investigation can, on its own, amount to discrimination “regardless of whether the underlying conduct subject to the investigation is found to be discriminatory”...

Some factors the Tribunal may consider are whether the employer and persons charged with addressing discrimination have a proper understanding of discrimination, whether the employer treated the allegations seriously and acted “sensitively”, and whether the complaint was resolved in a manner that ensured a healthy work environment…

Here, the employer’s response fell short of what was reasonable and appropriate and sowed the seeds for the altercation that would lead to the termination. The Employer had a policy on harassment and inclusion and made attempts at supporting and ensuring the Employee was properly gendered at work. However, the managers did not respond to the Employee’s complaints with any sense of urgency and did not appreciate how serious the complaints were.

At para 95 and 96, the Tribunal explained that once the Employee raised their complaint a second time, the discrimination issue should’ve taken immediate and urgent precedence over any other performance management issues the Employer was addressing with the bar manager:

This was not a conflict between two employees who simply held different opinions or did not like each other. This was a matter of discrimination. Given that the employer had accepted that Jessie Nelson’s complaints were valid, all that remained was to correct Mr. Gobelle’s behaviour. This was the employer’s responsibility and not Jessie Nelson’s. The employer is responsible for ensuring a healthy work environment: Robichaud v. Canada (Treasury Board), [1987] 2 SCR 84 at para. 15.

Termination

To prove that the termination of their employment violated the Code, the Employee must show that their gender identity and expression was one factor in that decision. It does not need to be the only or overriding factor.

Here the Employer argued that the two non-discriminatory reasons for terminating the Employee were: insubordination (choosing to confront the bar manager directly) and insulting and hitting him on the back during the confrontation.

The Tribunal disagreed with the Employer and found that the Employee’s gender identity was at least a factor in their termination. It was apparent to the Tribunal that the Employee was terminated in connection with their efforts to address discrimination.

The Tribunal also addressed the Employer’s submissions about the Employee being in the probationary period when terminated, and confirmed that it was irrelevant as parties cannot contract out of their duties under the Human Rights Code: “While an employer may terminate a probationary employee without cause and without notice, they cannot terminate them for any reason connected to the personal characteristics protected under s. 13.”

Where an employee is terminated in the context of a discriminatory work environment, careful attention must be paid to ensure there is no connection between the termination and the discriminatory environment. The Tribunal explained that in many cases, including this case, “[w]here employees are confrontational or aggressive as a result of a discriminatory working environment, discipline for that aggression is a violation of the Code.”

Under such conditions, people may react in any number of ways. When a person complains or speaks up about discrimination, there is a well‐known propensity to label them as “problematic or difficult to deal with.”

The Tribunal also rejected the Employer’s argument that the bar manager’s verbal conduct was less serious than physical conduct. The Tribunal held the discriminating verbal conduct of the bar manager had a much greater impact on the Employee than the impact that the slap on the back had on the bar manager (although the Employee was wrong to slap him).

Complaint Against Individual Respondents

The Tribunal found that the Employee was discriminated against in their employment, and the corporate respondent (Buono Osteria) was liable for the conduct of its employees and directors. The Tribunal found that the Employer, as well as the two directors and the bar manager were all individually liable for discrimination as well.

Award for Injury to Dignity, Feelings and Self-Respect

A violation of a person’s human rights is a violation of their dignity. The Tribunal awards damages to compensate a complainant for injury to their dignity, feelings, and self‐respect. The purpose of these awards is compensatory, and not punitive. In exercising this 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.

The Tribunal awarded a total of $30,000, which is what the Employee asked for. The bar manager was individually liable for $10,000, and the Employer (two Directors) were jointly liable for $20,000.

In determining the award, the Tribunal found that, although the length of employment was short, the discrimination was ongoing and escalating, culminating in the loss of employment. The Tribunal contemplated three aspects of the Employee’s vulnerability: 1) the context of their workplace; 2) their inherent marginalization as a transgender person; and 3) their recent move to a new, smaller community, which would impact potential future employment.

At page 39 of the decision, the Tribunal made an important note that Employers should be aware of – highlighting the upward trend of damages awarded in cases of discrimination in employment, which now range between $15,000 and $40,000:

The parties have provided me with a number of cases in which the Tribunal found discrimination based on sex or gender identity and awarded damages in amounts ranging from $4,000 to $22,000. Many of those cases are now dated, and the quantum of damages does not reflect the upward trend in these awards: Araniva v. RSY Contracting, 2019 BCHRT 97 at para. 145.

In that regard, more recent cases involving discriminatory harassment and/or the termination of a person’s employment have attracted damage awards in the range of $15,000 to $40,000: see eg. Benton; Araniva; Sales Associate; Loiselle v. Windward Software Inc. (No. 3), 2021 BCHRT 80; Ban v. MacMillan, 2021 BCHRT 74.

Order for Pronoun Policy and Mandatory Training

At the Employee’s request, the Tribunal also ordered that the Employer:

• Add a statement to its employee policies that affirms every employee’s right to be addressed with their own personal pronouns
• Implement mandatory training, of no less than two hours, for all staff and managers about human rights in the workplace

TAKEAWAYS

This case represents a costly lesson for the employer and serves as a warning to all others — ensure you are being careful and respectful with your employees, their gender-identity and preferred pronouns.

Some specific key points to remember are:

• All employees have the right to a workplace free of discrimination.
• Human rights law is concerned not with intentions, but with impacts.
• The use of nicknames such as “sweetie”, “sweetheart”, and “honey” have no place in a professional setting.
• Under the Code, employers have an obligation to respond reasonably and appropriately to discriminatory complaints ... This includes a duty to investigate.
• Because the Code obliges employers to respond to allegations of discrimination, a failure to do so in a way that is reasonable or appropriate can amount to discrimination.
• In particular, an investigation can, on its own, amount to discrimination “regardless of whether the underlying conduct subject to the investigation is found to be discriminatory”.
• Having a policy on harassment and inclusion is not enough.
• To prove that the termination of their employment violated the Code, the Employee must show that their gender identity and expression (or other protected characteristic) was one factor in that decision. It does not need to be the only or overriding factor.
• Whether or not the terminated employee is in their probationary period is irrelevant in these cases, as parties cannot contract out of their duties under the Human Rights Code.
• Employers as well as individual directors or employees can be found liable for discrimination (and damages).
• When awarding damages to compensate a complainant for injury to their dignity, feelings, and self‐respect, the BCHRT considers the following factors: the nature of the discrimination, the complainant’s social context or vulnerability, and the effect on the complainant.
• The Tribunal made an important note that Employers should be aware of, highlighting the upward trend of damages awarded in cases of discrimination in employment, which now range between $15,000 and $40,000.

Our Employment & Labour Group has been working with businesses to educate, develop and draft the right policies and contracts for their workplace and are here to help! Get in touch today.

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter or drafting of workplace policy, please contact Chris Drinovz at [email protected].

Chris Drinovz is an experienced employment and labour lawyer in Abbotsford, Langley, Surrey & South Surrey, a Partner at KSW and Head of the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Chris has been assisting local businesses with workplace issues since 2010. His expertise covers all facets of the workplace including wrongful dismissal, employment contracts, workplace policies, and WorkSafeBC matters, including occupational health & safety. Chris is on the Executive of the Employment Law Section of the Canadian Bar Association BC, the Vice President of Greater Langley Chamber of Commerce and a Director for Surrey Cares.

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