“Shocking and Hurtful”: Misgendering, Outing, and Incorrect Use of Pronouns in the Workplace Amounts to Discrimination

The Human Rights Tribunal of Ontario (the “Tribunal”) held that restaurant employees who were subject to transphobic slurs, misgendering, and outing by the restaurant owner were discriminated against in their employment on the basis of gender identity, gender expression and sex. Remedies awarded included lost wages and compensation for injury to dignity, feelings and self-respect.^[1]

What Happened?

The Applicants - who identify as either gender queer or nonbinary, using they/them pronouns – were kitchen employees at a restaurant managed by its owner. The Applicants alleged that the owner refused to use their correct pronouns, as instructed, instead misgendering them and likening their request to “walking on eggshells”.

The Applicants further alleged that the owner was overheard talking to customers on the dining room floor, referring to the kitchen staff using a transphobic slur. When the Applicants raised their concerns over this comment, the owner denied using a slur and insisted he simply told customers he had “four staff who were LGBT”. The owner refused to address the Applicants’ concerns any further.

Feeling that their dignity, safety, and privacy was not being taken seriously, the Applicants quit their employment and filed human rights applications against the restaurant and the owner. Neither Respondent responded to the applications, and the allegations were therefore deemed by the Tribunal to have been accepted by the Respondents.

What Did the Tribunal Decide?

The Tribunal held that the Applicants experienced adverse treatment in the course of their employment on the basis of their gender identity, gender expression and sex, and affirmed that “gender queer and non-binary trans people are a historically disadvantaged group protected from discrimination” under the Human Rights Code (the “Code”).^[2]

The Tribunal held that:^[3]

• The transphobic slur was made in a public setting to strangers/customers in the workplace, effectively outing the Applicants and making them fear for their safety;
• The owner’s failure to adequately respond to the Applicants’ concerns and investigate further constituted an adverse impact;
• The Applicants’ loss of employment was a by-product of feeling as if they had no choice but to leave a workplace that failed to respond to their concerns; and
• Misgendering or the use of incorrect pronouns was adverse treatment with respect to the Applicant’s employment.

Having found that discrimination they experienced led to loss of employment, the Tribunal awarded lost wages, and took into account the impact that their experiences had on the search for alternate employment.

The Tribunal also awarded each Applicant $10,000.00 as compensation for injury to dignity, feelings and self-respect, accepting that the restaurant owner’s status and public nature of his comments favoured a higher award. Notably, the Tribunal accepted the Applicants’ fears for their safety and future discrimination as a result of the public outing they experienced, which the Tribunal described as “shocking and hurtful”. Finally, while the Tribunal accepted that misgendering or the use of incorrect pronouns was discriminatory in this instance, it was unable to factor this into its monetary award due to an absence of any particulars in the Applicants’ applications.

Takeaway for Employers

While the Respondents did not respond to the Application, this decision has the potential to inform future cases on the grounds of gender identity, gender expression, and sex in Ontario. These concepts are not new;^[4] earlier cases have addressed the lived experiences of 2SLGBTQIA+ people in the workplace. While the Code does not specifically refer to the use of pronouns, the Tribunal was clear that the acts of intentional misgendering and incorrect pronoun usage can constitute adverse treatment. In this case, a failure to award monetary remedy for the Applicants’ experiences was not because they were not compensable, but rather due to deficiencies in the Applicants’ pleadings. As such, future cases with more fulsome applications on similar grounds will likely result in further guidance from the Tribunal on available monetary and non-monetary remedies.

This decision is also a reminder to employers that reports of discrimination and harassment in the workplace must be taken seriously. An employer’s failure to reasonably investigate and appropriately address a complaint of discrimination can also constitute an adverse impact, and lead to monetary and non-monetary liability.