In Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137, the British Columbia Human Rights Tribunal found that a restaurant and its managers that refused to use a server’s pronouns, among other actions, discriminated against the complainant in employment based on their gender identity and expression, in violation of s. 13 of the Human Rights Code (Code). 

Background

The complainant is a non-binary, gender fluid, transgender individual who uses they/them pronouns.  During the complainant’s employment as a server, the restaurant’s bar manager persistently referred to them with she/her pronouns and with gendered nicknames like “sweetheart,” “honey,” and “pinky.” The complainant asked the bar manager to stop, but he did not. They asked management to intervene and were told to wait. On their final day of work, the complainant again tried to speak to the bar manager about this issue and the discussion grew heated. Four days later, the complainant was fired. When the complainant asked why, one of the restaurant managers told the complainant that they had simply come on “too strong too fast” and was too “militant.”

The complainant alleged that the bar manager’s conduct towards them, and the employer’s response, amounted to discrimination in employment based on their gender identity and expression, in violation of s. 13 of the Code.

Decision

The Tribunal agreed with the complainant’s discrimination claim.  The Tribunal noted, “Trans employees are entitled to recognition of, and respect for, their gender identity and expression. This begins with using their names and pronouns correctly.”

The Bar Manager

The Tribunal found that the bar manager’s conduct toward the claimant amounted to discrimination in employment based on their gender identity, demeaning them and undermining their dignity at work.

The Employer and the Restaurant Managers

The Tribunal found that because the employer had accepted that the complaints were valid, it was its responsibility to correct the bar manager’s behavior; however, because of the employer’s inaction, the claimant felt that they were being left to deal with the situation on their own. The employer took the complainant’s conduct in dealing independently with the bar manager – rather than the bar manager’s discriminatory conduct – as the “starting point of the interaction,” viewing the claimant “as the angry instigator” without assessing their conduct in context.  When the employer terminated the complainant’s employment instead of addressing the issues, it discriminated against the complainant.  The court also found that because the decision to terminate the complainant’s employment was made by the restaurant managers, they too were directly responsible for the discrimination. 

Remedies

The Tribunal made a declaration that the conduct of the restaurant and its managers contravened s. 13 of the Code and ordered them to cease the contraventions and refrain from committing the same or similar contraventions.

The Tribunal then ordered the restaurant and its bar and restaurant managers to pay the complainant a total of $30,000 as compensation for injury to their dignity, feelings, and self-respect. 

Finally, the Tribunal ordered the restaurant to add a statement to its employee policies that affirms every employee’s right to be addressed with their own personal pronouns, and to implement mandatory training, of no less than two hours, for all staff and managers about human rights in the workplace.

Bottom Line for Employers

Employers with employees who use they/them pronouns have a responsibility to promptly investigate and address discriminatory behavior in the workplace.  An employer’s failure to address such behaviour may put it at risk of being found to have discriminated against the employee in their employment based on their gender identity and expression, in violation of applicable human rights legislation; and of being ordered to pay the employee significant compensation for injury to their dignity, feelings, and self-respect.

Employers are encouraged to implement suitable workplace policies that address the proper pronouns for transgender and nonbinary individuals and to educate all employees about human rights in the workplace via appropriate training.  Employers should review their existing workplace policies and employee training practices to determine whether they satisfy these needs, and revise them with the assistance of experienced employment counsel if they do not.