Labour & Employment Newsletter

Pronouns in the Workplace

In 2013, “gender identity” and “gender expression” were added as protected grounds to the Nova Scotia Human Rights Act. The Canada Human Rights Act followed suit in 2016. It is well established that employers are prohibited from discriminating against employees based on gender identity and gender expression. In a recent decision from the British Columbia Human Rights Tribunal (the “Tribunal”), Nelson v Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137, the Tribunal discussed the nature and extent of the protections under human rights law with respect to an employee’s preferred pronouns.

Facts

The Complainant, Nelson, was a non-binary, gender fluid, and transgender person who used they/them pronouns. Nelson worked as a server for Buono Osteria (the “Employer”), a restaurant run by the Respondents, Michael Buono (“Buono”) and Ryan Kingsberry (“Kingsberry”), and managed by the Respondent, Brian Gobelle (“Gobelle”). Nelson made the Employer aware of their preferred pronouns from the onset of their employment and was assured they would be used.

Throughout their employment, Nelson was continuously called she/her pronouns by Gobelle, as well as gendered nicknames such as “sweetheart,” “honey” and “pinky”. Nelson requested that Gobelle stop using improper pronouns but Gobelle continued. Nelson reached out to management for help but was told to wait. Nelson attempted to speak to Gobelle directly which led to a heated conversation and minor physical contact. Four days after the altercation, Nelson was fired. In terminating Nelson’s employment, Kingsberry told Nelson they had come on too strong, too fast, were too “militant” and they were not a “good fit”.

The Tribunal found that the Employer, Gobelle, Kingsberry, and Buono had discriminated against Nelson under the British Columbia Human Rights Code (the “Code”) based on gender identity and gender expression.

Analysis and Decision

The Tribunal considered whether Gobelle’s conduct was discriminatory, whether the Employer’s response to the concerns raised by Nelson was appropriate and reasonable, and whether Nelson’s gender identity and gender expression were factors in the termination of their employment.

The Tribunal found that Gobelle’s persistent use of improper pronouns and gendered nicknames was discrimination and these actions adversely effected Nelson’s employment. In making this determination the Tribunal made the following comments about the use of pronouns:

  • Transgendered employees have the right to have their preferred pronouns used. “This is not an ‘accommodation’, it is a basic obligation that every person holds towards people in their employment.”
  • Pronouns are a fundamental part of a person’s identity. “Especially for trans, non-binary, or other non-cisgender people, using the correct pronouns validates and affirms they are a person equally deserving of respect and dignity.”

The Tribunal appreciated the newness of using gender neutral pronouns and noted that there will be mistakes, but unfortunately those mistakes come at the expense of trans and non-binary people. The Tribunal further commented that human rights law is about impacts not intentions; however, intentions can help mitigate harm. When a person is trying their best and corrects their mistakes, like other employees did, complaints are less likely to be made. Gobelle was a case of deliberate misgendering and a callous and careless use of improper pronouns. The Tribunal found that the Employer’s position that Gobelle was “older, old fashioned, or confused” was not a defense and Gobelle had an obligation to at least try to use the preferred pronouns.

With respect to Gobelle’s use of nicknames, the Tribunal stated that, although in some cases they can be endearing, they are not appropriate in the workplace.  When used by a man to a woman, the effect is “infantilizing and patronizing, and reinforces gendered hierarchies.”

The Tribunal found that the Employer was aware of Gobelle’s conduct and the Employer’s response was not appropriate or reasonable. It directly led to the termination of Nelson’s employment. By asking Nelson to wait to address the issue, Nelson had to continue to endure the discrimination.  The Tribunal found that the Employer’s response lacked a sense of urgency and understanding of how important the situation was and fell short of the Employer’s obligation to prevent discrimination in the workplace.

Based on what was said by Kingsbury to Nelson in their final conversation. the Tribunal found that Nelson’s gender identity and gender expression were factors leading to the termination of their employment. A direct link between the discriminatory environment and the termination of Nelson’s employment was found. The Tribunal affirmed that, if an employee is confrontational or aggressive because of a discriminatory environment, as Nelson was, imposing discipline for that reaction is a contravention of the Code. The Tribunal concluded that Nelson was fired based on how they reacted to discrimination against them.

The Employer stated in its response to terminating Nelson’s employment, that anything physical was more serious and justified the termination. The Tribunal did not agree finding that the Employer undermined the power of language and the effects of discrimination. Furthermore, the Tribunal found that Kingsberry’s comments about Nelson not being a “good fit” demonstrate the dangers of considering workplace “fit” when it comes to equity seeking groups. Employers should be cognizant of this when considering “fit” in their hiring practices and when assessing employees.

Remedy

The Tribunal awarded a general award of $30,000 for injury to dignity, feelings, and self-respect. The Employer was also ordered to add a statement to its employee policies affirming each employee’s right to be addressed by their preferred pronouns and to implement mandatory human rights training for staff and managers.

Conclusion

This case is an important reminder to employers not to discriminate against transgendered and non-binary employees, particularly in relation to preferred pronouns.  Employers should ensure that they encourage the use of preferred pronouns in the workplace and that managers and employees make their best efforts to address each other using preferred pronouns.


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