Ontario human rights case 'important reminder that employers should respect employees' wishes'
A recent Ontario human rights case highlights the importance of treating gender pronouns properly in the workplace.
In EN v Gallagher's Bar and Lounge, a bar and its owner were found to have breached the Human Rights Code and told to pay general damages of $10,000 each to three employees for compensation for injury to their dignity, feelings and self-respect, in addition to awards for lost wages.
“This decision serves [as] an important reminder that employers should respect their employees' wishes regarding the use of pronouns,” says Maria Tassou, senior legal counsel at Pallett Valo in Mississauga, Ont., in speaking with Canadian HR Reporter
“Further, all employers need to take their employees' concerns seriously regarding discrimination and harassment. A failure to promptly investigate and address such concerns could lead to significant liability.”
Discriminatory comments
Employees of Gallagher's Bar and Lounge in Hamilton, Ont. – one who identified as gender queer and two who identified as non-binary trans persons – sued their employer after he was overheard referring to them as "trannies" when he spoke to customers of the bar.
When confronted, Jamie Gallagher was dismissive and "insinuated that the applicants were being oversensitive about his improper use of their pronouns."
The tribunal found that by mis-gendering the applicants and by using incorrect pronouns when referring to them, the applicants were subjected to adverse treatment in their employment at the bar, says Tassou.
The Human Rights Code prohibits actions that discriminate against people based on various protected grounds, including things such as gender identity, gender, expression, sex, sexual orientation,” she says.
“If an employee feels that they're being treated differently or unfairly because of any one of these protected grounds, they can file a claim for discrimination.”
A law firm in Ontario is now offering its workers gender affirmation coverage. Borden Ladner Gervais (BLG) is providing $10,000 per year for the program, available to both firm members and their family, up to a maximum of $50,000 per person.
Gender pronouns
All three employees in the case used the pronouns "they/them", and their employer could not simply disregard that, she says.
“Employers need to treat everyone with respect and dignity. So if someone specifically asks you to use a specific pronoun when referencing them, an employer should respect their wishes, and they should do that.”
Avoiding workers’ chosen pronouns is also not a good idea, says Tassou.
“I think that that would lead to a toxic or poisoned work environment,” she says. “To be quite honest, I don't think it's impossible to avoid pronouns, because you're always going to be talking about a person when you're asking someone to do a task at work and you may be referring to that person when you're talking to another co-worker.”
And though legal cases based on the misuse of workers’ pronouns are still quite uncommon, they may arise, says Tassou.
“I think we're going to see more and more of these, especially because now people are starting to promote their pronouns on email signatures and that sort of thing.”
Ultimately, respecting a worker’s choice of pronoun boils down to respecting a person, says Tassou.
“Employers need to treat everyone with respect and dignity. So if someone specifically asks you to use a specific pronoun when referencing them, an employer should respect their wishes, and they should do that.”
