What Happened?
The Complainant - who identifies as a transgender man, using he/him/his pronouns – was assigned another name at birth, which he had not been able to legally change. Throughout the course of his employment with the Respondent business owner in a small town, he was repeatedly deadnamed (that is, referred to by his birth name) misgendered and asked invasive questions with respect to being transgender by each of the named Respondents.
The Complainant alleged that the Respondents refused to use his correct pronouns and name, instead misgendering and deadnaming him consistently throughout his employment. The Complainant also alleged that even after educating the Respondent business owner about the potential dangers of being outed as a trans person in a small town, the Respondent continued to do so.
Feeling that his dignity, safety, and privacy was not being taken seriously, the Complainant quit his employment and filed a human rights complainant against the business owner, his former employer, and an additional colleague.
What did the Tribunal Decide?
The Tribunal held that the Applicant experienced adverse treatment in the course of his employment on the basis of his gender identity or gender expression and affirmed that the Complainant was “vulnerable because of the forces of systemic inequality that continue to oppress, marginalize, and discriminate against transgender people”).[1]
The Tribunal also held that:
- The Respondents had acknowledged that they misgendered and deadnamed the Complainant, but continued to do so directly to the Complainant, with other employees and friends from the community who visited the workplace;
- The Respondents made additional inappropriate comments in reference to his gender identity or expression, including asking the Complainant which washroom he used, despite the fact that the workplace only had one single washroom;
- The Respondents misgendered the Complainant during the hearing and continued to do so, even after being corrected by the Tribunal and the Complainant’s counsel;
- The Complainant was particularly vulnerable as he feared being outed as transgender in a small community to which he had moved in order to accept the job;
- The Complainant’s loss of employment was a by-product of feeling he had no choice but to leave a workplace that failed to respond to his request to use his name and correct pronouns; and
- The misgendering and deadnaming was adverse treatment with respect to the Complainant’s employment.
Having found that discrimination he experienced led to loss of employment, described by the Tribunal as a “very serious outcome”[2], the Tribunal awarded the Complainant $18,000 as compensation for injury to dignity, feelings and self-respect, accepting that the Respondents’ consistent behaviour favoured a higher award. Notably, the Tribunal accepted the Complainant’s fears for his safety and future discrimination in his small community as a result of treatment he experienced, which the Tribunal described as “reckless”.
Takeaway for Employers
This case follows the findings of tribunals in both Ontario and British Columbia which addressed the lived experiences of 2SLGBTQIA+ people in the workplace and found that:
- Misgendering, deadnaming or the use of incorrect pronouns is adverse treatment with respect to employment;
- Transphobic slurs or invasive questions in the workplace can make employees fear for their safety, not just at the workplace but also within their communities; and
- An employer’s failure to adequately respond to misgendering, deadnaming and outing in the workplace constitutes an adverse impact.
These decisions are a reminder to employers that reports of discrimination and harassment in the workplace must be taken seriously. Policy, implementation through education and an employer’s commitment to equity, diversity and inclusion are crucial in order to create more inclusive workplaces. Employers must reasonably investigate and appropriately address complaints of discrimination which if not done, could also constitute an adverse impact, and lead to monetary and non-monetary liability.
Developing and/or reviewing existing workplace policies and practices with the lens of equity, diversity and inclusion is key.
Employers may want to provide employees with information, resources and educational seminars and ensure the proper supports and procedures are in place for their diverse workers who may be affected.
For more information on this and other equity, diversity, and inclusion matters, please contact the author or your regular Fasken lawyer.
