In Ontario, gender identity and gender expression are protected under Ontario’s Human Rights Code (the “Code”)– the legislation that provides protection for provincially regulated workplaces in Ontario.
This legislation protects against discrimination based on a prohibited ground in matters related to employment (for more information on 2SLGBTQ+ Human Rights in the Workplace, see here).
Discrimination in employment is made out where an applicant shows that:
- They have a characteristic protected from discrimination under the Human Rights Code;
- They have experienced adverse treatment with respect to their employment; and,
- The protected characteristic was a factor in the adverse treatment.
EN v Gallagher’s Bar and Lounge, 2021 HRTO 240
The Human Rights Tribunal of Ontario recently issued a decision finding that an employer had breached the Code for misgendering and making a transphobic comment about employees. The employees, one of whom identifies as gender queer and two of whom identify as a non-binary trans person, felt they had no choice but to resign from their employment because of their employer’s conduct.
The adjudicator found that the employer had breached the Code by discriminating against the employees based on their gender identity, gender expression, and sex. In reaching this decision, the adjudicator considered that:
- Gender identity, gender expression, and sex are protected grounds under the Code;
- The applicants had experienced adverse treatment during their employment because of their gender identity, gender expression, and sex;
- The employer failed to respond to the applicants’ concerns. Failure to reasonably investigate and address a discrimination complaint can constitute an adverse impact;
- The applicants felt they had no choice but to resign due to the employer’s conduct. The loss of employment is a form of adverse impact; and,
- Misgendering or using incorrect pronouns is adverse treatment.
The adjudicator awarded the employees monetary compensation for their lost wages, as well as $10,000 each as compensation for injury to dignity, feelings, and self-respect. In this case, the adjudicator did not factor the instances of misgendering into the award for compensation for injury to dignity, feelings, and self-respect due to an absence of any particulars (i.e. details) raised on this allegation. Rather, compensation was based on the employer’s transphobic comment, the context in which it was made, and the fact that the employer did not attempt to rectify the situation, as well as the fact that the discrimination led to the employees’ resignations.
Does misgendering at work constitute discrimination?
In the case discussed above, the adjudicator found that misgendering or using incorrect pronouns is adverse treatment. This finding is in line with the Ontario Human Rights Commission’s recognition that misgendering is a form of discrimination. The Ontario Human Rights Commission has stated that, “purposely misgendering will likely be discrimination when it takes place in a social area covered by the Code, including employment…”.
The British Columbia Human Rights Tribunal (the “Tribunal”) also recently considered a case where a bar manager persistently misgendered an employee. Management failed to intervene, despite being aware of the situation, and ultimately fired the employee. The Tribunal found that the manager’s conduct and the employer’s response amounted to discrimination in employment based on gender identity and expression, and ordered remedies against them.
What does this mean for employees?
- Employees have a right to a workplace free from discrimination based on gender identity and gender expression;
- Discrimination may include an employer misgendering employees in the workplace;
- If an employee faces discrimination and the employer fails to rectify the situation despite being made aware of it, the law may consider the employee constructively dismissed;
- If an employee experiences discrimination in the workplace, they may have remedies (for example, monetary compensation) available to them.
What does this mean for employers?
- Employers have a legal duty to maintain a work environment free from discrimination based on gender identity and gender expression;
- Employers must take complaints seriously. Failure to reasonably investigate and address a discrimination complain could be costly;
- Employers should not engage in discriminatory conduct such as misgendering employees.
If you have questions about discrimination in the workplace, contact our Employment Law team.
Nelligan Law gratefully acknowledges the contribution of articling student Rhian Foley in writing this article.