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By Tony Poland, LegalMatters Staff • The importance of the proper use of personal pronouns in the workplace cannot be understated and employers who ignore workers’ human rights do so at their own peril, says Toronto employment lawyer Ellen Low.
Gender identity and expression were added as grounds of discrimination under Ontario’s Human Rights Code (HRC) in 2012, says Low, principal of Ellen Low & Co.
She says pronouns are an important part of a gender-expansive employee’s identity and their proper use demonstrates respect and inclusion in the workplace. Some workers choose to use pronouns such as “they, them and theirs” instead of “she, her and hers” or “he, him and his,” says Low.
Failing to respect this choice as protected under the HRC can lead to sanctions by the Human Rights Tribunal of Ontario (HRTO), she says, citing a landmark 2021 decision that awarded more than $40,000 in lost wages and damages to three restaurant workers who alleged discrimination in employment, contrary to the Code.
“Employers must recognize the fact that we have a judicial decision with respect to pronoun use,” Low tells LegalMattersCanada.ca. “When someone tells you that they have preferred pronouns you should do your best to use them.
Tribunal found bar owner discriminated against three employees
In EN v. Gallagher’s Bar and Lounge, the HRTO found the owner discriminated against three of his employees based on their gender identities and gender expressions.
The three worked in the kitchen of the Hamilton bar in 2018 and identified as gender queer and/or non-binary trans and used they/them pronouns.
The tribunal heard the workers were subjected to trans and homophobic language. The owner was heard to make inappropriate comments about gender identity, the tribunal was told, and one employee overheard him refer to the kitchen staff using a pejorative term while socializing with customers over drinks.
The owner was asked to make amends for the comment but he denied saying it. The tribunal heard that despite the employees’ requests, the owner refused to use their correct pronouns, and repeatedly misgendered them. He also told one worker that he believed he had been “walking on eggshells” around them, according to the judgment.
According to the judgment, the workers “felt that they had no choice but to stop working at the Restaurant. 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.”
Adjudicator Jessica Connell ruled that a monetary award was necessary “to compensate each of the applicants for injury to their dignity, feelings and self-respect is appropriate.”
‘The applicants were publicly outed without their consent’
“I agree with the applicants that the personal respondent’s status and the very public nature of his comments favour a higher award than in incidents of single or few comments made by co-workers,” she wrote in her judgment. “The applicants were publicly outed without their consent in their workplace by the Restaurant’s principal to customers as trans or gender non-conforming.
“This was shocking and hurtful. I accept that the applicants feared risks to their safety and future discrimination as a consequence of the personal respondent’s action,” she added. “Instead of rectifying the situation, the personal respondent denied the behaviour and then went silent.”
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Connell ultimately found the bar and the owner were jointly and severally liable for all compensation.
Low, who was not involved in the case but comments generally, says she was not surprised by the amount of the award.
“The workers not only had to experience a violation of their human rights, they also effectively lost their jobs,” she says. “That discrimination played a factor in the decision to end or to have the employment relationship come to an end. That fits into that is why the compensation would be so high.”
Timely warning
She says the Gallagher decision provides a timely warning.
“An employer does not necessarily need to walk on eggshells as this employer says he did. What you need to do is be curious and then respectful,” she explains. “When someone tells you they have preferred pronouns, you should be doing your best to use them.
“People may make mistakes. But if you repeatedly refuse to use the preferred pronoun you are crossing that threshold of what is known or ought to be known to be unwelcome, which is a violation of the Code.”
While some employers may not have much experience when it comes to the proper use of pronouns, ignorance is not a defence if the employee has made their wishes known, Low says.
It is also important to remember that the HRTO has no ceiling on the amount of compensation that can legally be awarded when it comes to general damages and the ability to pay doesn’t enter into it.
‘Loss of self-respect, dignity and confidence’
“The impact on the individuals absolutely does. What comes into it is the humiliation, hurt feelings, loss of self-respect, dignity and confidence by the complainant, as well as the experience of victimization, the vulnerability of the complainant and the seriousness of the offensive treatment,” she says. “Those are all set out in Arunachalam v. Best Buy Canada.”
That seminal case clarified the purpose of general damage awards for loss of dignity stating:
“Monetary compensation for injury to dignity, feelings and self-respect recognizes that the injury to a person who experiences discrimination is more than just quantifiable financial losses, such as lost wages. The harm, for example, of being discriminatorily denied a service, an employment opportunity, or housing is not just the lost service, job or home but the harm of being treated with less dignity, as less worthy of concern and respect because of personal characteristics, and the consequent psychological effects.”
In the end, if employers have questions about their obligations under the Human Rights Code they should seek legal advice,” Low says.
“And when it comes to someone’s choice of personal pronouns, it is important to be cognizant and be respectful,” she says, “If someone has different pronouns, use them.”
