Canada: Employers Could Be Held Liable For Improper Use Of Pronouns In The Workplace

In a recent decision, EN v Gallagher's Bar and Lounge, 2021 HRTO 240 (CanLII), the Human Rights Tribunal of Ontario (the "Tribunal") found that an employer discriminated against three employees because of their gender identity, gender expression and sex by subjecting them to transphobic slurs and by mis-gendering them by refusing to use their proper pronouns.

The applicants, EN, JR and FH filed applications with the Tribunal alleging discrimination in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, (the "Code"). All three applicants were employees of Gallagher's Bar and Lounge (the "Bar"). EN identified as gender queer and both R and FH identified as non-binary trans persons. They all used the pronouns "they/them". The applicants asked the owner of the Bar, Jamie Gallagher, to refer to each of them using "they/them" pronouns, but he refused to do so.

Mr. Gallagher was overheard referring to the applicants as "trannies" when he spoke to customers of the Bar. When Mr. Gallagher was confronted about these comments, he denied it and did not deal with the matter appropriately. As a result of his failure to respond to their concerns, the applicants took the position that they were constructively dismissed. The applicants felt that they could not continue to work at the Bar because they "did not want to experience a recurrence of the personal respondent's conduct or the consequences of his disregard for their privacy and safety."¹ Neither the Bar nor Mr. Gallagher filed responses to the application. As a result, the Tribunal based its decision only on the sworn affidavits and written submissions of EN, JR and FH. The Tribunal ultimately held that the Bar and Mr. Gallagher breached the Code and that they were held jointly and severally liable to pay EN, JR and FH general damages of $10,000.00 each for compensation for injury to their dignity, feelings and self-respect, for a total of $30,000.00, in addition to awards for lost wages for EN, JR and FH.

The Tribunal found that Mr. Gallagher discriminated against the applicants because of their gender identity, gender expression and sex as a result of his use of the word "trannies" when referring to the applicants, which is a transphobic slur. Mr. Gallagher also made the comment in a public setting to customers of the Bar "effectively outing the applicants in a derogatory and non-consensual way and causing them to fear for their safety."²

Rather than dealing with the applicants' concerns, Mr. Gallagher was dismissive and he "insinuated that the applicants were being oversensitive about his improper use of their pronouns."³ The Tribunal found that by mis-gendering the applicants and by using incorrect pronouns when referring to them, the applicants were subjected to adverse treatment in their employment at the Bar. The Tribunal found that the Bar was responsible for Mr. Gallagher's actions pursuant to section 46.3 of the Code.

This decision serves an important reminder that employers should respect their employees' wishes regarding the use of pronouns. Further, all employers need to take their employees' concerns seriously regarding discrimination and harassment. A failure to promptly investigate and address such concerns could lead to significant liability.

Footnotes

1. EN v. Gallagher's Bar and Lounge, 2021 HRTO 240 (CanLII) at paragraph 24

2. Supra at paragraph 28

3. Supra at paragraph 29

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