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DISCRIMINATION ON THE BASIS OF GENDER IDENTITY AND GENDER EXPRESSION CAN BE COSTLY FOR EMPLOYERS

October 13, 2021

A recent decision by the Human Rights Tribunal of Ontario (the “HRTO” or the “Tribunal”) serves as an important reminder for employers that failing to provide a discrimination-free workplace

to transgender, gender queer, non-binary, and other gender non-conforming individuals can be costly.

In EN v Gallagher’s Bar and Lounge [Gallagher], the HRTO awarded over $40,000 in damages against an employer for discriminating against three former employees who are gender non-conforming, based on their gender identity, gender expression, and sex.

Background

It is a little-known fact among employers that gender identity and gender expression are protected grounds under the Ontario Human Rights Code [Code], and have been since 2012. As such, the Code prohibits discrimination against employees based on their gender identity or gender expression, in the same way it prohibits discrimination in employment based on other protected grounds such race, age, and disability.

Although the Code does not define gender identity and gender expression, the Ontario Human Rights Commission (the “Commission”) has a policy that includes the following definitions, which are based on previous tribunal and court decisions:

  • “gender identity” refers to an individual’s experience of being a woman, man, or neither;
  • “gender expression” is the way in which an individual expresses gender, such as through their hair and dress; and
  • “trans” or “transgender”, refers to people with diverse gender identities and expressions that differ from stereotypical gender norms.

It should be noted that gender identity and gender expression are different from sexual orientation. For additional information, please read our blog regarding the Commission’s Policy on preventing discrimination because of Gender Identity and Gender Expression.

EN v Gallagher’s Bar and Lounge

In Gallagher, three workers (the “Applicants”) filed Applications with the HRTO against their former employer and the manager/owner of the business (the “Respondents”), alleging that they had been discriminated against and constructively dismissed due to their gender identity, gender expression, and sex. All three of the Applicants’ preferred pronouns are they/them, with one applicant identifying as gender queer and the other two identifying as non-binary trans people.

The Applicants alleged that the Respondents persistently misgendered them by refusing to use their preferred they/them pronouns, and that the respondent manager/owner publicly referred to them with a transphobic slur to customers in the workplace. Moreover, the Applicants alleged that the respondent manager/owner was dismissive of their concerns, including by stating that he felt he was “walking on eggshells” around them when it came to using their preferred pronouns.

Notably, the Respondents failed to respond to the Applications and were therefore deemed to have accepted all allegations made against them.

Ultimately, the HRTO awarded each of the Applicants $10,000 in damages for the injury to their dignity, feelings, and self-respect, as well as damages for lost wages arising from the discrimination they suffered. In reaching this judgment, the Tribunal found that the Respondents had discriminated against each of the Applicants based on their gender identity, gender expression, and sex, including by:

  • egregiously referring to the Applicants with a transphobic slur to customers, thereby outing them in a derogatory and non-consensual manner and causing them to fear for their safety;
  • failing to adequately respond to, investigate, or address the Applicants’ complaints of discrimination; and
  • causing the Applicants to feel that they had no choice but to leave their employment by being dismissive of and not adequately responding to their concerns.

Notably, the Tribunal found that misgendering or using the incorrect pronouns for gender non-conforming individuals can constitute discrimination on the basis of gender identity and/or expression. However, the Applicants did not plead any particulars regarding when they were allegedly misgendered and by whom. As a result, the Tribunal did not award any damages based on these allegations.

Takeaways

Gallagher illustrates that employers who fail to provide gender non-conforming people with a workplace free from discrimination based on gender expression and gender identity may face substantial human rights liability. Accordingly, employers would be well advised to ensure that their managers and supervisors are all trained on the importance of treating gender non-conforming individuals with dignity and respect. In particular, managers and supervisors should be made aware that using transphobic slurs, misgendering others, and not using a person’s preferred pronouns is unacceptable and will not be tolerated in the workplace.

Although the Tribunal in Gallagher did not award damages based on the Respondents misgendering the Applicants and failing to use their preferred they/them pronouns for procedural reasons, the Tribunal made it clear that this type of adverse treatment can constitute discrimination on the basis of gender identity and/or expression. Moreover, the British Columbia Human Rights Tribunal recently awarded a former employee $30,000 because their former employer discriminated against them by terminating their employment after they raised concerns about their manager and co-workers refusing to address them with their preferred pronouns.

Finally, employers should have appropriate policies and procedures in place to ensure that all allegations of discrimination are adequately investigated and addressed. This is because failure to investigate and address allegations of discrimination in the workplace can itself constitute discrimination and result in substantial liability, as was the case in Gallagher.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.

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