A bar owner in Hamilton was recently ordered by the Ontario Human Rights Tribunal to pay more than $40,000 to three employees for misusing their preferred pronouns and publicly referring to them as “trannies.” One employee identifies as gender queer, while two others identify as non-binary trans persons.
The employees asked the bar owner to refer to each of them with they/them pronouns, but he persisted in mis-gendering them. He was also overheard referring to his kitchen staff as “trannies” when he was speaking to customers at the bar. When confronted, the bar owner denied using the term and insisted the staff were being overly sensitive.
Employment lawyer Peter McSherry has represented individuals who’ve experienced similar discrimination at work. Their life had been made so miserable that they felt their only option was to leave. The Human Rights Code prohibits actions that discriminate against people based on various protected grounds, including gender identity, gender expression, sex, and sexual orientation.
Misuse of pronouns can be harassment
The use of they/them pronouns for transgender persons may be relatively new to some people, and mistakes are being made McSherry said, “But deliberate and persistent unwanted behavior designed to pick on somebody for a prohibited type of discrimination, has been defined as harassment for a long time.” In this case, the Tribunal also found that the complainants endured a transphobic slur that outed them to customers in a derogatory way, causing them to fear for their safety.
Obligations of the employer
It’s important to treat gender pronouns properly in the workplace. McSherry said, “An employer has an obligation to respect their employees and acknowledging their workers choice of pronoun comes down to respecting the person.” The Tribunal agreed with the complainants that the owner did not take the complaint seriously, failed to meaningfully respond to the complaints, and took no steps to rectify the problem. The owner is obligated to appropriately address a complaint of discrimination. McSherry said, “If an employer persists in the behavior, that will be an expensive business decision.”
The Tribunal concluded that the owner discriminated against each of the employees because of their gender identity, gender expression and sex. It also found that the employees were outed without their consent in their workplace to customers by restaurant owner and that the result was shocking and hurtful. They feared for their safety and future discrimination and felt they had no choice but to leave.
Compensation for discrimination
The Tribunal determined the employees were entitled to $10 thousand each in general damages for breach of the code, which caused injury to their dignity, feelings, and self-respect. They were also awarded lost wages.
The Tribunal found that the owner’s discriminatory comment and the context in which it was made was egregious and instead of rectifying the situation, the owner denied the behavior.
Workers should be aware of their rights
Many people aren’t aware of their rights, and they do not file a complaint with the Human Rights Tribunal. They simply want to extricate themselves from a difficult situation.
McSherry said, “These are very difficult cases because you’re hitting somebody so close to their core identity for something that is so hurtful to them.” Some people will do anything to get away from the situation and may not have the emotional support to be able to deal with the litigation process. We will support them through the process in a respectful way.
Peter McSherry urges people who feel they are the victim of discriminatory behavior to come forward.
You can contact Peter McSherry at (519) 821-5465 or visit: www.petermcsherry.ca