Despite considerable societal progress in the last few decades, two recent decisions serve as a timely reminder of the challenges that transgender people can still face in places of work and learning.
The outcomes in both cases identify important lessons for both employers and employees about the protection that Ontario’s Human Rights Code affords against discrimination on the basis of gender identity and gender expression.
Ontario College of Teachers v Teal, 2022 ONOCT 33
In this disciplinary hearing, a teacher with the Avon Maitland District School Board — covering the counties of Huron and Perth— pleaded guilty to professional misconduct for his treatment of two students who identified as boys.
According to an agreed statement of facts, over a five-month period, the teacher ignored the students’ requests to be referred to by their preferred names and pronouns, instead calling them by their birth names, telling them that they made “lovely girls” and asking them why they wanted “to be guys?” In addition, the teacher wrote to the school’s principal and vice-principal, suggesting that referring to the students by male names “was promoting/exacerbating a mental illness.”
The teacher eventually resigned after grieving the school board’s decision to fire him for breaches of its policies on the accommodation of staff and students who identify as transgender.
In its own decision, the disciplinary panel found that the teacher’s persistent questioning of his students’ gender identity and expression amounted to verbal abuse. It stated:
“The Member’s demonstrated intolerance and discriminatory conduct toward students has no place in the classroom. Teachers have a responsibility to maintain a safe and inclusive learning environment and to treat all students equitably.”
It imposed a reprimand, followed by a three-month suspension of the teacher’s licence.
The panel also required the teacher to complete a course of instruction on appropriate classroom communications “with an emphasis on fostering diversity and inclusion” before he could resume teaching.
EN v. Gallagher’s Bar and Lounge, 2021 HRTO 240
Misgendering is not just a professional regulation issue, as the owner of a Hamilton, Ont. restaurant recently discovered following a human rights complaint from three of his employees.
According to the Human Rights Tribunal of Ontario’s decision, two of the workers at Gallagher’s Bar and Lounge identified as non-binary trans persons, while they and a third used they/them pronouns. The three complained that their employer — who did not take part in the hearing — persistently misgendered them throughout their employment and was overheard referring to his kitchen staff as “trannies” to customers.
When confronted about his conduct, the owner denied making the comments and told one of the complainants that he was “walking on eggshells” around them in an effort to use their correct pronouns.
All three left their employment soon after, telling the Tribunal that they felt they had no other choice because of the owner’s failure to deal with the matter appropriately.
Although the complaints had few details of the instances when their boss had misgendered them, the Vice-chair found that each had been discriminated against because of their gender identity, gender expression and sex. Her conclusion was made easier by the non-participation of the respondent restaurant and respondent owner who were deemed to accept the allegations by their non-attendance at the hearing.
Regarding the merits of the complaint, the Vice-chair said that the applicants were outed in a “derogatory and non-consensual” way when they were called “trannies” in front of customers. They were misgendered on more than one occasion. The result was that they felt unsafe in their workplace. Then, when they raised the issue, the owner of the restaurant did not properly respond to their concerns and implied they were being too sensitive with his comment about “walking on eggshells.”
The Vice-chair also accepted the evidence of the applicants that they had no choice but to leave their work due to the owner’s statements and the employer’s failure to respond to their concerns.
Of note, the Vice-chair commented on the employer’s failure to investigate and appropriately address a complaint of discrimination. She emphasised that this can itself constitute an adverse impact and lead to a violation of the Code. This is not a novel proposition, but unfortunately, one that required restating in this case.
In addition to compensation for lost wages, the Vice-chair also awarded each of the three complainants $10,000 for injury to their dignity, feelings and self-respect.
Takeaways
These decisions are an important reminder of the significant consequences of misgendering and for failing to investigate complaints of misgendering.
For employees, they provide a graphic illustration of the emotional and psychological damage that can be inflicted when a person’s wishes regarding the use of pronouns are not respected. They also provide an indication that there are clear avenues of redress open to them when they are discriminated against on the basis of gender identity or gender expression.
The message that employers and regulated professions should take is that the use of a person’s correct pronouns is a matter of basic respect. Deliberate misgendering can result in financial liability as well as reputational damage. So too can failing to investigate complaints of misgendering (and other violations of the Code).
The lawyers at Loewenberg Psarris Workplace Law LLP routinely conduct workplace investigations on behalf of their clients and third parties who require the assistance of neutral third parties. Please contact us to discuss how we can help you or your clients navigate difficult issues related to workplace law.
