Mississauga, Canada

NImproper use of pronouns in the workplace: Employers could be held liable

By Maria Tassou, Pallett Valo LLP

In 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 misgendering 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 Ontario Human Rights Code.

All three applicants were employees of Gallagher’s Bar and Lounge (the “Bar”). EN identified as gender queer and both JR and FH identified as non-binary transpersons. The applicants asked the owner of the Bar, Jamie Gallagher, to refer to each of them using the pronouns “they/ them”, but he refused to do so.

He was overheard referring to the applicants as “trannies” when he spoke to customers, effectively outing them in a derogatory and non-consensual way. When confronted, he did not deal with the matter appropriately. Due to his failure to respond to their concerns, the applicants took the position that they were constructively dismissed and felt that they could not continue to work at the Bar.

The Tribunal held that both the Bar and Mr Gallagher breached the Ontario Human Rights Code and that they were held jointly and severally liable to pay EN, JR, and FH general damages of CAD 10,000 each in compensation for injury to their dignity, feelings, and self-respect, plus awards for lost wages. The Tribunal found that by being misgendered and by the use of incorrect pronouns when referring to the applicants, they were subjected to adverse treatment in their employment at the Bar.

This decision serves as 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.

Maria Tassou

Maria Tassou

GGI member firm
Pallett Valo LLP
Law Firm Services
Mississauga (ON), Canada
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Pallett Valo LLP is one of Ontario’s Top 10 Regional Law Firms. The firm practices in the areas of business law, commercial litigation, commercial real estate, construction, employment and labour, and wills, estates, and trusts.

Maria Tassou is a member of the Employment and Labour Practice Group. Her practice focuses on employment law, administrative law, workplace investigations, management training, and privacy law.

Published: Employment Law Newsletter, No.12, Summer 2022l Photo: Shawn.ccf - stock.adobe.com

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