Does a Difficult Client Base Justify Not Hiring Someone Because of their Gender Identity?

In 2016, the Québec legislature amended section 10 of the Charter of Human Rights and Freedoms (the “Québec Charter”) to add gender identity and expression to the list of prohibited grounds of discrimination. To date, Québec Human Rights Tribunal (“QHRT”) has only rendered one decision on this ground, namely Kin,[1] which involved discriminatory comments. Last June, the QHRT issued a decision, confirming that gender identity discrimination in the hiring process is impermissible. 

Facts

In this case, the complainant identified as a trans person. She applied for a job as a waitress in a Montréal Bar. After the manager expressed interest in her candidacy, the complainant was invited to the bar for some training. Another employee was assigned to provide the complainant’s training. That employee attested to the quality of the complainant’s work. After her training, the complainant was informed that she would be contacted to confirm her work schedule.

Later that evening, the complainant formally met with the Bar manager, who asked her if she was trans, which she confirmed. The manager of the Bar immediately told the complainant that she would not be hired, explaining that [translation] “the client base is old-fashioned, I don't want to have to defend you every day.”

Shortly thereafter, the complainant filed a complaint with Québec’s human rights commission, the Commission des droits de la personne et des droits de la jeunesse.

The Decision

The QHRT found that the complainant was discriminated against on the basis of her gender identity, which involved the refusal to hire her. The e[NH1]mployer clearly stated that the complainant was not hired because of her trans identity.

As justification, however, the employer argued that being a cis-gendered person was a bona fide occupational requirement within the meaning of section 20 of the Québec Charter. The employer alleged that the anticipated dangers to the complainant’s safety and the negative reaction of its client base to the hiring of a trans woman justified their refusal to hire the complainant.

The judge emphatically rejected these arguments, opining that:

• It is not enough to claim a risk of danger and violence for refusing to hire someone. The risk must be real, serious and excessive, and no such evidence was presented in this case.
• The fear of any economic or business impact on the employer’s business, such as a reduction in business volume due to customer disdain or contempt for trans employees, can never be a reason for disregarding human rights.
• An employer cannot justify discriminatory treatment based on the preferences and prejudices of its client base.

Accordingly, the QHRT allowed the complaint and ordered the employer to pay $10,000 in moral damages and $4,000 in punitive damages.

Takeaways

This decision is clearly part of a broader legislative and jurisprudential trend aimed at reaffirming the dignity and rights of trans people and protecting gender identity. [2] Moreover the decision served confirm that human rights are a primary concern in employment and that contraventions such as this one are worthy of sanction. As the judge further opined it is:  “mandatory and important to denounce such behaviour” and that “we cannot allow this type of practice to continue in Québec.” 

In this decision, the QHRT made it clear that transphobia is not a basis on which hiring decisions can be made.