An employer cannot discriminate on the basis of gender identity. An employer is required to refer to an employee using the pronoun of the employee’s choice. Refusal to do so is a violation of the Ontario Human Rights Code (the “Code”).
An employee can file a no cost, online complaint against the employer under the Code, and seek damages against the employer and the person who refuses to use the pronoun of the employer’s choosing.
Earlier this year, an adjudicator appointed under the Code, ordered a restaurant and its owner to pay three employees over $ 40 000 in damages. One employee was a kitchen manager who supervised the other two employees. Each of these employees uses the them/they pronouns.
The restaurant and the owner chose not to respond to the employees’ complaint or to participate in the hearing. Not responding made it easier for the three employees to win their case.
The three employees alleged the owner of the restaurant refused to refer to them by the pronoun of their choosing. However, they provided no particulars with respect to this allegation. Because their allegations were deemed to be true because the employer/owner did not respond to the allegations, the employees did not need to prove this allegation.
The three employees also claimed another employee overheard the restaurant owner tell a customer “I have 4 trannies in my kitchen!” When they confronted him in a meeting at the workplace, he denied making the comment and instead claimed he told the customers that he had four staff who were “LGBT.” Even though the employees did not hear this statement, the allegation was deemed to be true.
Furthermore at this meeting, the owner told one of the three employees he believed he had been “walking on eggshells” around them, specifically by trying to use the proper pronouns to address the three employees. Two of the employees felt that the comment “walking on eggshells” considered them too sensitive.
Two of the three employees continued working after this meeting. About two weeks later, they provided written notice of their concerns to the employer from their lawyer. The restaurant owner did not respond to this letter.
The adjudicator concluded the restaurant owner failed to meaningfully respond to the concerns expressed at the meeting or in the lawyer’s letter.
Because the employees’ allegations were deemed to be true, the restaurant and its owner were found to have violated the Code. The two respondents were ordered to pay each employee $ 10 000 in general damages for the loss of dignity and self-respect. The balance of the damages were for lost wages from the date they left employment until the restaurant closed. Since the restaurant closed in November 2018, and this decision was from 2021, I assume the owner will be required to pay these damages personally.
Lessons to be learned:
1. Every employee has the right to equal treatment without discrimination because of sexual orientation, gender identity and gender expression. This includes the right to be called the pronoun of the employee’s choosing.
2. If an employer or an individual respondent does not respond to a human rights complaint, then the Human Rights Tribunal of Ontario can, and often does, deem them to have accepted all of the allegations in the complaint. As a result, the employees does not need to prove that the allegations are true.
3. A person who is named personally in a human rights complaint should always file a response to the complaint, otherwise the person can be ordered to pay damages personally.
For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416-317-9894 or at [email protected]