Human Rights: Gender Identity in the Workplace
Update by Parmvir Padda, Lawyer and Erin Brandt, Cofounder
In a recent British Columbia Human Rights Tribunal (“Tribunal”) decision, Nelson v Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 (“Nelson”), the Tribunal reviewed the importance of respecting gender pronouns and identity in the workplace, and emphasized how a failure to do so may constitute discrimination under the British Columbia Human Rights Code (the “Code”).
Background
Jessie Nelson was a server at Buono Osteria who uses they/them pronouns. Mr. Gobelle, the Bar Manager at Buono Osteria, often referred to Jessie as she/her, and used nicknames for Jessie such as “sweetheart”, “honey” and “pinky”. Jessie repeatedly asked Mr. Gobelle to stop, and when he refused, Jessie asked Buono Osteria management to intervene.
When Mr. Gobelle did not change his behaviour, Jessie pulled Mr. Gobelle aside during a shift, and asked him to use the correct pronouns and to stop using the nicknames. Four days after Jessie spoke with Mr. Gobelle, they were terminated from their employment. When Jessie asked why they had been terminated, Buono Osteria management told them they had come off “too strong, too fast”, and were “too militant” (see para 75).
Jessie filed a human rights complaint against Buono Osteria, its owners and Mr. Gobelle, arguing Mr. Gobelle’s behaviour and Buono Osteria’s response amounted to discrimination in employment based on gender identity and expression under the Code.
Decision
The Tribunal made these general remarks on respecting gender identity in the workplace:
Transgender employees are entitled to have their gender identity and expression recognized and respected.
To respect an individual’s pronouns in the workplace is not an accommodation, but a basic obligation that every person holds towards people in their employment.
Pronouns are a fundamental part of a person’s identity, and are a primary way that people identify each other. Using correct pronouns communicates that we see and respect a person for who they are.
The Tribunal found Mr. Gobelle’s conduct was discriminatory against Jessie based on gender identity and in violation of the Code. Mr. Gobelle had an obligation to try to change his thinking and respect Jessie’s pronouns and identity, and his failure to do so undermined Jessie’s dignity at work.
Buono Osteria and its owners were also found to have discriminated against Jessie. Specifically, their liability was due to their failure to respond reasonably to Jessie’s complaint of discrimination. The Tribunal found that Jessie’s gender identity and expression were factors in Buono Osteria’s decision to terminate their employment. In short, Jessie was terminated because of how they chose to deal with the discrimination against them – namely, confronting Mr. Gobelle directly regarding his inappropriate use of pronouns.
The Tribunal awarded Jessie damages in the amount of $30,000. Buono Osteria was liable for the entire amount, with Mr. Gobelle and the individual owners of Buono Osteria each sharing personal liability over a portion of the total award. The Tribunal also ordered Buono Osteria to implement a pronoun policy and mandatory training for all staff and managers on diversity, equity and inclusion.
Takeaway for Employees
Where an employee requests the use of correct pronouns, their coworkers and employer must respect those pronouns and make an effort to use them correctly. Perfection is not the standard, and depending on the context, mistakes may be acceptable. However, the Tribunal was clear that employees can expect that their colleagues will at least try to be respectful of correct pronouns.
Takeaway for Employers
Employers must listen to employees who raise concerns of discrimination at work. Employers have a responsibility to provide a safe work environment for their employees, which includes acceptance of an individual’s gender identity and preferred pronouns. A safe work environment also requires that when an employee raises concern of discrimination, the employer must take reasonable and appropriate steps to address that concern, which may under certain circumstances involve investigating the alleged discrimination.