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'An adverse impact': Are you using the correct pronouns?

Gender identity and gender expression are protected grounds under human rights legislation both provincially and federally in Canada
Canadian law is moving toward ensuring people's preferred pronouns are used in the workplace | Photo: Jena Ardell / Getty Images

Oct. 19 marked International Pronouns Day but one B.C.-trained lawyer says more needs to be done to ensure people are correctly addressing others.

In a recently published commentary, Grace McDonell said gender identity and gender expression are protected grounds under human rights legislation both provincially and federally in Canada.

McDonell, now working with the Fasken law firm's Toronto office, said tribunals in both Ontario and B.C. have addressed the lived experiences of 2SLGBTQIA+ people in the workplace and found misgendering or the use of incorrect pronouns is adverse treatment with respect to employment.

McDonnell said transphobic slurs in the workplace can make employees fear for their safety and an employer’s failure to adequately respond to misgendering and outing in the workplace constitutes an adverse impact on employees.

The cases

The B.C. decision is a 2021 one from the B.C. Human Rights Tribunal.

There, Jesse Nelson filed a complaint against their employer, Buono Osteria, a Gibsons restaurant run by Michael Buono and Ryan Kingsberry. Brian Gobelle was the bar manager.

Nelson identifies as a non-binary, gender-fluid, transgender person who uses they/them pronouns.

Nelson said Gobelle persistently referred to them with she/her pronouns and with gendered nicknames like “sweetheart,” “honey,” and “pinkie.”

Nelson asked Gobelle to stop; he didn't, according to tribunal documents. They asked management to intervene and were told to wait.

“On their final day of work, Jessie Nelson again tried to speak to Mr. Gobelle about this issue and the discussion grew heated,” tribunal member Devyn Cousineau said in the Sept. 29, 2021 decision. “Four days later, they were fired. Pressed to explain the termination, Mr. Kingsberry told Jessie Nelson that they had simply come on ‘too strong too fast’ and were too ‘militant.’”

Cousineau found Buono Osteria, Buono, Kingsberry and Gobelle discriminated against Nelson in their employment on the basis of their gender identity and expression contrary to the B.C. Human Rights Code.

Cousineau ordered Buono Osteria and Gobelle to pay Nelson $10,000 as compensation for injury to their dignity, feelings and self-respect. She also ordered Buono Osteria, Kingsberry and Buono to pay Nelson $20,000 as compensation for injury to their dignity, feelings and self-respect.

The restaurant was ordered to add a statement to its employee policies affirming every employee’s right to be addressed with their own personal pronouns. The restaurant also had to implement mandatory training for all staff and managers about human rights in the workplace.

A March 2021 Human Rights Commission of Ontario case also dealt with a service establishment.

One staff member identified as gender queer and used they/them pronouns. Two others identified as a non-binary trans person and used they/them pronouns. The trio had asked the owner to use their preferred pronouns but the request was disregarded.

They said the owner was overheard talking to customers, referring to the kitchen staff as “trannies” and when one raised the matter with him, he denied it and did not deal with the matter appropriately.

“The applicants were publicly outed without their consent in their workplace by the restaurant’s principal to customers as trans or gender non-conforming. This was shocking and hurtful,” the decision said.

The employees were awarded almost $41,000 in damages.

What they mean

McDonell said the decisions are a reminder to employers that reports of discrimination and harassment in the workplace must be taken seriously.

“An employer’s failure to reasonably investigate and appropriately address a complaint of discrimination can also constitute an adverse impact, and lead to monetary and non-monetary liability,” McDonnell said.

The lawyer said the best way to facilitate discussions around pronoun usage is to host education sessions in conjunction with providing resources.

“This might include bringing in an external speaker with expertise in the area for a lunch-and-learn or incorporating brief 2SLGBTQIA+ educational components into weekly or monthly staff meetings” McDonnell said. “Implementing an equity, diversity and inclusion committee is also another option to create a space for employees to ask questions, provide suggestions and ideas or voice any concerns.”

McDonnell also suggested other ways to normalize pronoun usage, including:

  • Identifying your pronouns on your email signature, biography, business cards, or including them when introducing yourself. It not only informs others of how you wish to be referred, but also signals to the recipient that you are respectful and welcoming of their pronouns and identity;
  • If in doubt, ask a person how they wish to be addressed, preferably after sharing your own pronoun. This might include personal pronouns or more formal methods of address such as Ms./Mrs./Mr./Mx (pronounced “mix”);
  • Educating employees about the 2SLGBTQIA+ community generally;
  • Officially recognizing, and encouraging employees to include pronouns in their everyday language;
  • Considering developing and implementing a pronoun policy or pronoun resource guide, and;
  • Developing and/or reviewing existing workplace policies and practices with the lens of equity, diversity, inclusion and reconciliation.

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