In Nelson, the British Columbia Human Rights Tribunal (the “BCHRT”) concluded that Goodberry Restaurant Group Ltd. dba Buono Osteria and others (the “Employer”) had discriminated against Jessie Nelson, a non-binary employee, on the basis of gender identity and expression. This is the first time the Tribunal has decided a case regarding misuse of pronouns in the workplace, and its implications are significant.
The Employer hired Jessie Nelson as a server. Prior to the commencement of their employment, Jessie Nelson communicated to the Employer that they were non-binary and their pronouns were they/them. Almost immediately after beginning their employment, Jessie Nelson began experiencing issues with the bar manager, Mr. Gobelle. Mr. Gobelle refused to use Jessie Nelson’s they/them pronouns, instead regularly referring to them by gendered nicknames such as “sweetheart” and “honey” and using she/her pronouns. Jessie Nelson repeatedly reminded Mr. Gobelle of their pronouns and asked him to stop using nicknames; however, Mr. Gobelle’s behaviour persisted. Jessie Nelson expressed concerns to their employer, Mr. Kingsberry, regarding Mr. Gobelle’s consistent misgendering and use of inappropriate nicknames. Mr. Kingsberry told Jessie Nelson that he would speak with Mr. Gobelle.
A week after Jessie Nelson first raised their concerns regarding Mr. Gobelle, they followed up with Mr. Kingsberry. Mr. Kingsberry reassured Jessie Nelson, saying that he would speak with Mr. Gobelle, but not immediately, as there were other issues with Mr. Gobelle’s performance that needed to be addressed first.
A week later, Jessie Nelson approached Mr. Gobelle during work to address his consistent misuse of Jessie’s pronouns. The intended constructive conversations turned into an altercation after which, Jessie Nelson left the restaurant. Shortly thereafter, Mr. Kingsberry called Jessie Nelson to inform them that the restaurant was terminating their employment on the basis that they had come on “too strong too fast” and had made staff uncomfortable. As a result, Jessie Nelson commenced a complaint in the BCHRT for discrimination.
In hearing the complaint, the Tribunal considered three issues:
- Did Mr. Gobelle’s conduct towards Jessie Nelson in the workplace amount to discrimination?
- Was the Employer’s response reasonable and appropriate?
- Was Jessie Nelson’s gender identity and expression a factor in the termination of their employment?
Mr. Gobelle’s Conduct
The Tribunal concluded that Mr. Gobelle’s conduct towards Jessie Nelson amounted to discrimination. Mr. Gobelle’s persistent use of she/her pronouns, gendered nicknames, and other nicknames when referring to Jessie communicated that he did not recognize Jessie’s gender and their right to define their identity. The Tribunal found that this behaviour, along with Mr. Gobelle’s uncommunicative and uncooperative attitude towards Jessie Nelson at work, were all connected to Jessie Nelson’s gender identity and expression, and therefore amounted to a violation of the Code.
The Tribunal concluded that the Employer’s response to Jessie’s concerns regarding Mr. Gobelle’s conduct was not reasonable and appropriate. The Employer’s response “lacked any sense of urgency” and, even though Jessie Nelson had only worked at the restaurant for a brief time, it was not “reasonable or appropriate to ask Jessie Nelson to continue to endure discrimination until the employer found an opportune time to talk to Mr. Gobelle.”
The Tribunal concluded, based on the reasons for termination offered by Mr. Kingsberry, that Jessie Nelson’s gender identity and expression was a factor, if not the factor, which led to their termination. After concluding that Jessie Nelson had been discriminated against, the Tribunal awarded them $30,000.00 in injury to dignity damages
This case has important implications for all employers:
- Employers, along with their employees, volunteers, and contractors, must be respectful of an individual’s pronouns and gender identity. This may include proactively communicating the pronouns of an individual to employees where the individual gives their consent to do so. However, employers should not assume that if they do take proactive, higher-level steps, their responsibilities end there. Where, for instance, one employee persists in misgendering another employee, the employer must act in a timely manner to protect the targeted employee from further discrimination. Making the occasional mistake about an individual’s pronouns will not amount to discrimination, if the employer takes proactive steps to ensure the workplace is inclusive and correct themselves and others when they slip up. However, being “old” or “traditional” is not an excuse for persistently misgendering a person in the workplace. Once the issue has been brought to the attention of the employer or employee, they must make an effort to adapt their behaviour.
- Employers should take steps to make the workplace gender neutral and inclusive.This could include, among other things, gender inclusive signage and dress codes, changing bullying and harassment policies to address gender identity and expression, keeping gender identity confidential unless otherwise consented to by the individual, and mandatory training about gender identity and the impacts of misgendering.
- Employers can face significant financial risk if they fail to take sufficient steps to acknowledge and recognize an individual’s chosen pronouns. The Tribunal in this case ordered a $30,000 damages award, placing considerable weight on the serious impacts of being misgendered.
If you have any questions about the Nelson case, about creating a gender-neutral work environment, or any other employment-related questions, please contact one of the members of our Labour & Employment team.