Failure to use proper pronoun results in $30,000 lesson for employer

Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria

Employee Jessie Nelson, who identifies as a non-binary, gender fluid, transgender person, and who uses they/them pronouns (“Nelson”), brought a complaint before the B.C. Human Rights Tribunal (the “Tribunal”) against their restaurant employer, Goodberry Restaurant Group Ltd. dba Buono Osteria (“Goodberry”).

Nelson brought the complaint following the bar manager’s persistent usage of she/her pronouns and gendered nicknames such as “sweetheart”, “honey”, and “pinky”, and subsequently continued to do so, despite Nelson’s requests for the bar manager’s to stop.

Following a series of events, as laid out below, Nelson was terminated.

Nelson’s complaint was brought pursuant to section 13 of the B.C. Human Rights Code, which, provides that a person will not be discriminated against in the course of their employment.

According to Nelson’s complaint, the conduct of Goodberry’s bar manager towards Nelson amounted to discrimination.

Additionally, Nelson alleged that their termination had been for reasons relating to their identification.

Issues before the Tribunal

On Nelson’s complaint, the Tribunal was called upon to determine whether:

• The conduct by Goodberry’s bar manager towards Nelson in the course of Nelson’s employment amounted to discrimination
• The response of Goodberry was reasonable and appropriate in the circumstances
• The gender identity and expression of Nelson were a factor in Nelson’s eventual termination

Facts of the case

To aid the Tribunal in its finding of fact, the Tribunal heard from and weighed the credibility of five witnesses.

According to the evidence, when Nelson started with Goodberry in 2019, Nelson’s superior spoke with the restaurant staff, and consistently and proactively followed up regarding Nelson’s they/them pronouns, including correcting himself and others when errors occurred.

The published decision reflects that Goodberry’s bar manager seemed less agreeable to using they/them pronouns, and perhaps even implemented the above noted, and other, gendered nicknames in connection with his elevated level of resentment towards Nelson.

Moreover, it appears accepted that Goodberry’s management was aware of the conflict between its bar manager and Nelson, and communicated with the bar manager about the issue.

Ultimately, and following a number of other untoward interactions between Nelson and Goodberry’s bar manager, Nelson again approached their superior to ascertain whether Goodberry was taking any steps regarding its bar manager’s conduct.

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The reported evidence is not consistent as to what happened next, but it would seem that Nelson, being dissatisfied with the rate at which the situation with Goodberry’s bar manager was being addressed, took it upon themselves to confront the bar manager.

Notwithstanding the conflicting evidence, the Tribunal found that Nelson’s communique with Goodberry’s bar manager was condoned by Goodberry’s management.

It is reported that the conversation between Nelson and Goodberry’s bar manager did not go well, nor did the verbal exchange that happened between them some minutes later in front of those witnesses who gave evidence before the Tribunal.

The reported decision reflects that Goodberry’s decision to terminate Nelson was at least in part because it was seen as the easiest resolution due to Nelson still being in their probationary stage.

The Tribunal concluded that Goodberry’s chief executive had accepted its bar manager’s version of events without ever hearing from Nelson regarding the same.

To compound the situation, the decision suggests that no one from Goodberry had conveyed to Nelson that they had been, or were about to be, terminated until merely hours before their next scheduled shift by way of a telephone call.

The Tribunal’s decision

The Tribunal ultimately found that Nelson had been discriminated against in the course of their employment on the basis of gender identity and expression, which violated section 13 of the Human Rights Code.

To this end, the Tribunal ordered, among other things, cessation, and future refrain from further similar conduct on the part of Goodberry and certain named employees.

The Tribunal also ordered a monetary award payable from Goodberry and its bar manager to Nelson for injury to dignity, feelings, and self-respect.

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Reasons behind their decision

To Goodberry’s detriment, was the bar manager’s admission that his memory of the underpinning events, having occurred two years prior to the hearing, was not quite so clear.

As such, the Tribunal relied more heavily on the evidence given by other witnesses.

Moreover, as reflected in the published decision, the bar manager had trouble when giving his evidence before the Tribunal in using they/them pronouns in reference to Nelson.

Goodberry’s conduct towards Nelson

Regarding the question of whether Nelson experienced discrimination in the course of their employment, the Tribunal reasoned that pronouns, like names, are a fundamental part of a person’s identity, and are the primary way people identify one another.  To this end, we can glean that referring to someone with incorrect pronouns is akin to referring to someone by an incorrect name.

Appropriateness of Goodberry’s response

Regarding the question of whether Goodberry’s response to the situation that arose was reasonable and appropriate in the circumstances, the Tribunal said that Goodberry’s response fell short, and in falling short, sowed the seeds for the confrontation that ultimately lead to Nelson’s termination. The Tribunal went on to suggest that Goodberry should have dealt with, or at least made efforts to address, the conflict between its bar manager and Nelson more quickly than it did.

How gender identity factored into termination

Regarding the question of whether Nelson’s gender identity and pronouns were factors in Nelson’s termination, the Tribunal concluded indeed they were, albeit not in an immediately apparent way. The Tribunal reasoned that it was Nelson’s efforts to address the discrimination Nelson was experiencing, which was based on Nelson’s gender identity, which caused Goodberry to terminate Nelson’s employment. The Tribunal notes that where an employee is terminated in the context of a discriminatory work environment, the employer must pay careful attention to ensure there is no connection between the employee’s termination and the discriminatory environment.

Key Takeaways for Employers

Use proper pronouns

Employers need to be aware that they must make every effort to ensure employees’ proper pronouns are used. The perhaps less apparent cautionary note is that should an issue regarding pronouns used in the course of employment arise, how quickly an employer addresses the issue, and subsequently resolves the issue, seem to be impactful on the Tribunal’s assessment of the employer.

Key Takeaways for Employees

Talk to your manager

While this decision reads as being heavily in favour of the employee, there are still things an employee who may find themselves in a similar situation can do, such as speaking with the appropriate supervisors and managers about the situation.

Set deadlines

It can also be helpful for the employee to work with their employer in setting timelines and deadlines for when certain things are meant to occur, such as meetings between involved parties and management or supervisors.

Follow up

If an employee is going to endeavour to work with their employer on the aforementioned, it is important for employees to remember to follow up with their employer to ensure progress towards a resolution is actually occurring.

Experiencing harassment in the workplace?

If you are experiencing any form of harassment or discrimination in the workplace, contact an employment lawyer at Samfiru Tumarkin LLP immediately.

As Canada’s most positively reviewed law firm, we can help you navigate the situation and secure proper compensation if your rights have been violated.