Under the BC Human Rights Code, gender identity and expression are protected grounds for the area of employment. Discriminatory conduct regarding an employee’s gender identity and expression can result in orders to address specific policies or lack thereof, for payment of lost wages, or for compensation for injury to dignity, feelings and self-respect.
In the recent case of Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, a BC employer and some individuals learned the hard way that making light of an individual’s gender identity and failing to address related issues of bullying and harassment in the workplace are contraventions of the Code.
The Complainant Nelson brought the complaint against their former employer, Buono Osteria (the “Restaurant”), co-owners Michael Buono and Ryan Kingsberry, the bar manager Brian Gobelle, and Nova Melanson (note: the complaint against Melanson was dismissed).
Nelson is a non-binary, gender fluid, and transgender person who uses they/them pronouns. They worked as a server for the Restaurant. During Nelson’s employment, Gobelle persistently referred to Nelson with she/her pronouns and used gendered nicknames like “sweetheart”, “honey” and “pinky”. Nelson asked Gobelle to stop. He did not.
During a staff meeting, Kingsberry opened the conversation to invite ideas from the staff. One staff member raised the issue of inappropriate and alienating language that some employees used. Nelson took the opportunity to suggest ways to make the Restaurant a more inclusive space for trans guests.
This apparently caused further tension between Nelson and other staff, including Gobelle. Nelson believed, and the Tribunal agreed, that Gobelle had a specific animus towards them and that he would, amongst other things, deliberately sabotage or frustrate their performance at work. This included refusing to make drink orders or to assist in addressing customer requests.
About a week prior to their termination, Nelson asked the Restaurant’s management to intervene but the management told them to wait. Kingsbury told Nelson that the management was addressing other issues with Gobelle but that they would discuss the matter with him eventually.
On their final day of work, Nelson asked Kingsbury if he had spoken to Gobelle. He confirmed that he had not.
Nelson again tried to speak to Gobelle, which led to a heated discussion that started outside of the Restaurant during a smoke break and then escalated into a confrontation inside the Restaurant in front of other staff. During the discussion, Gobelle referred to Nelson by she/her pronouns and as sweetie, sweatheart, and honey.
The discussion ended with Nelson sarcastically calling Gobelle “sweetie” and patting him on the shoulder before leaving. Gobelle described it as being “smacked” and a “violent encounter” and an assault. Other staff members described it as an “antagonizing blow” or an audible slap. The Tribunal found that Nelson did use force on Gobelle’s back but did not accept that it was as a violent physical assault. The Tribunal noted that Gobelle was not hurt by the slap but rather was surprised by it and that it was unwelcome. The Tribunal described it as a “parting slap on the back”.
Several days later the Restaurant fired Nelson. When pressed to explain their decision, Kingsberry told Nelson that they came on “too strong, too fast” and were too “militant”. Kingsberry did not suggest that Nelson’s termination had anything to do with their conflict with Gobelle or the Restaurant’s view that they had assaulted him. There was also no complaint about their performance. The Restaurant later attempted to say that the termination was because of the “assault” or slap.
The Analysis and Decision
The Tribunal held that trans employees are entitled to recognition or, and respect for, their gender identity and expression, which begins with using their names and pronouns correctly. This, they say, is not an accommodation, but is a basic obligation that every employer owes to its employees.
The Tribunal found that Gobelle’s conduct towards Nelson amounted to discrimination. He deliberately referred to Nelson by female pronouns and gendered nicknames, despite being told explicitly by his managers and Nelson that they are trans, non-binary and to use they/them pronouns.
The Tribunals findings about Gobelle’s actions are lengthy and include the following statements:
- A person’s intention can go towards mitigating or exacerbating the harm caused by misgendering. Where a person is trying their best, the harm will be reduced. Where a person is callous, careless or deliberate in misgendering, the harm will be magnified.
- It is not a defense to simply say that Gobelle is older, or old fashioned, or confused by the request to gender neutral pronouns.
- The gendered terms Gobelle used have no place in a professional setting and, to Nelson, undermined, erased, and degraded their gender identity in their place of work.
- Gobelle’s indifference to Nelson’s lived experience, and open hostility to changing his behaviour, sent a message that the issue was not important to him and neither were they.
The Employer’s Response and Termination
The Tribunal found that the Restaurant’s response to Nelson’s complaints fell short of what was required by the Code and that Nelson’s gender identity was a factor in the termination of their employment contrary to the Code.
In coming to those conclusions, the Tribunal made the following statements:
- Employers have an obligation to respond reasonably and appropriately to complaints of discrimination.
- The Tribunal will consider factors such as whether the employer has a proper understanding of discrimination, whether the employer treated the allegations seriously and acted sensitively, and whether the complaint was resolved in a manner that ensured a healthy work environment.
- Whatever Gobelle’s other performance issues may have been, his duty not to discriminate against a co-worker should have been an immediate and urgent priority for the Restaurant.
- The employer is responsible for ensuring a healthy work environment. It was not Nelson’s responsibility to correct Gobelle’s behaviour. Rather than attempt to ‘mediate’ the situation between the co-workers, management should have simply corrected Gobelle’s behaviour.
- It is painful to endure a discriminatory work environment. While not necessarily true in every case, where employees are confrontational or aggressive as a result of being subjected to a discriminatory working environment, discipline for that aggression can be a violation of the Code.
- When a person complains or speaks up about discrimination, there is a well-known propensity to label them as “problematic or difficult to deal with”. This perpetuates the discrimination.
- Nelson was terminated because of how they responded to discrimination. They were held to a higher standard of conduct than Gobelle.
- Ultimately, the Restaurant concluded that it would be easier to terminate Nelson’s employment than to meaningfully address any of the issues they raised. In doing so, they discriminated against Nelson.
The Tribunal awarded $30,000 in total for injury to dignity, feelings, and self-respect. The respondents are jointly and severally liable for the award: the Restaurant is liable for the whole amount; Gobelle is liable for $10,000; and Kingsberry and Buono are individually liable for $20,000.
In some cases where a complaint is made against a company and related individuals, the company is said to be responsible for fulfilling the remedies and the complaint is dismissed against the individual respondents. Here, the Tribunal held that Gobelle was personally liable for his conduct and Buono and Kingsberry were personally liable for being directly responsible for the decision to terminate Nelson.
While, in all likelihood the Restaurant will end up footing the bill, this decision illustrates how seriously the Tribunal considers allegations of wilful acts of discrimination.
The Tribunal also ordered that the Restaurant add a statement in its policies that affirms employees’ right to be addressed with their own pronouns and implement mandatory training for staff and managers.
Employers should take away the following lessons from this decision:
- Use correct names and pronouns. This is an obligation, not an accommodation. As discussed in the decision, the simple act of misgendering someone who is trans, non-binary and/or gender fluid is harmful. Furthermore, nicknames, particularly gendered nicknames, can be discriminatory, but they are particularly hurtful when used deliberately to misgender someone.
- Take responsibility. As an employer, it is your responsibility to ensure that you have a healthy work environment for everyone. Victims of discrimination should not have to perform the emotional and actual labour of policing others.
- There is no time like the present. If you are aware of discriminatory conduct, take immediate steps to address the alleged misconduct. Delay may only create further issues, such as additional discrimination and harm.
- Actions over words. At times, allegations require investigation. For example, parties may need to be interviewed. Sometimes, mediation or discussion may be necessary to resolve misunderstandings. However, if there is no dispute that the discrimination has or is taking place, then take concrete steps to correct the behaviour.
- Half effort does not produce half results – it produces no results. If you intend to terminate an employee for a specific reason, such as assaulting a co-worker, then conduct a good faith investigation into the matter and diligently document your efforts. In this case, it likely would not have made a difference, as the alleged slap and ongoing discrimination were so intertwined, but had the Restaurant thoroughly investigated the matter and carefully considered evidence from both parties, their alternative explanation for the termination may not have been so easily dismissed.
If you want more information on this topic, or have questions about updating your company’s policies or handbook, you can contact us at:
Geoffrey Howard: firstname.lastname@example.org
Sebastian Chern: email@example.com