Background
In a recent decision, EN v Gallagher’s Bar and Lounge, 2021 HRTO 240 (CanLII), the Human Rights Tribunal of Ontario (the “HRTO”) found that an employer discriminated against three of his employees based on their gender identities, gender expressions, and sex by subjecting them to trans-and homophobic language, intentional outing, and by misgendering them through his refusal to use their preferred pronouns.
The three Applicants, referred to as EN, JR, and FH, were kitchen employees at a restaurant managed by its owner, Jamie Gallagher; each identified as either genderqueer or non-binary, using the chosen pronouns ”they/them.” They openly requested to be addressed with these pronouns.
The Allegations
The Applicants alleged that, despite their requests, the owner refused to use their correct pronouns, instead repeatedly misgendering them and suggesting he had to “walk on eggshells” around them. As well, the Applicants overheard the owner, Mr. Gallagher, speaking with customers out in the open dining room/bar area, referring to the kitchen staff with transphobic slurs, calling them “trannies.”
When the Applicants raised their concerns over the owner’s transphobic comments and misgendering, Mr. Gallagher denied the slur and claimed he had told customers he had “four staff who were LGBT.” He refused to acknowledge or address the Applicants’ concerns, or to implement any workplace changes. As a result, the Applicants considered this a form of constructive dismissal, feeling 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.”
The Applications to the HRTO
Claiming injury to their dignity, safety, and privacy, the Applicants quit their employment and filed applications to the HRTO alleging discrimination in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”), against both the restaurant and its owner, Mr. Gallagher. Neither Respondent responded to the applications. The allegations were therefore deemed by the HRTO to have been accepted by the Respondents and its decision was based solely on the sworn affidavits and written submissions of the Applicants.
Outcome
The Tribunal held the Applicants experienced adverse treatment in the course of their employment based on their gender identities, gender expressions, and sex. It affirmed that “genderqueer and non-binary trans people are a historically disadvantaged group protected from discrimination” under the Code. The Tribunal considered the reference to “trannies” as a transphobic slur and found that its use by Mr. Gallagher, in a public setting, to the Bar’s customers “effectively outed the applicants in a derogatory and non-consensual way, [causing] them to fear for their safety.”
The Tribunal found Mr. Gallagher, in refusing to acknowledge the Applicants’ concerns, was dismissive. Rather than address the situation and respond appropriately, he implied, through his comments, that they were being overly sensitive about his refusal to address them in accordance with their chosen identities. The Tribunal found that, in misgendering the Applicants in these ways, EN, JR, and FH were subjected to adverse treatment in the course of their employment and that their loss of employment was a by-product of feeling as if they had no choice but to leave a workplace that failed to respond to their concerns and out of fear for their safety. The Tribunal described this as “shocking and hurtful.”
Ultimately, the Tribunal found that the Bar was responsible for Mr. Gallagher’s actions, pursuant to s. 46.2 of the Code. It awarded the Applicants $10,000 each as compensation for injury to dignity, feelings, and self-respect, accepting that the restaurant owner’s status and the public nature of his comments favoured a higher award. Importantly, the Tribunal accepted that the owner’s misgendering or intentional use of improper pronouns constituted discrimination.
Employer Takeaways
EN v Gallagher significantly impacts the human rights landscape in Ontario with respect to applications before the HRTO based on the grounds of gender identity, expression, and sex. The Tribunal was clear that the intentional misgendering and improper pronoun use can (and was found to have) constituted adverse treatment. Notably, this case highlights best practices for employers: to take employee wishes and concerns with respect to their own pronouns, identities, and gender expressions seriously. Failure to do so through inadvertence, prejudice, intentional or wilful negligence, or unwillingness, including a failure to investigate properly and in a timely manner to address complaints of discrimination, can lead to both monetary and non-monetary liability, reputational damage, and low employee morale.
If you are an employer looking to better understand your obligations under the Ontario Human Rights Code, and/or best practices for responding appropriately to complaints of workplace discrimination, harassment or violence, or if you are an employee looking to navigate Ontario’s human rights system, please reach out to SpringLaw for a consultation.
