Recently, Ted Flett, was quoted in a case comment by Jeffrey Smith of Canadian HR Reporter. The article, which analyzed a recent Canadian Human Rights Tribunal decision where a transgender employee was awarded $18,000 for workplace discrimination, is below and can be found on the magazine’s website here.
Transgender Employee gets $18,000 for Workplace Discrimination
Colleagues’ use of wrong name, pronouns related to worker’s gender identity led to resignation
“It’s no longer acceptable to repeatedly say [in the workplace] that an individual resembles a certain gender identification and ‘I’m going to continue to address you as such and I just keep forgetting.’ It’s really about being more vigilant about words and conduct.”
So says Ted Flett, an employment lawyer at Zubas Flett law in Toronto, after the Canadian Human Rights Tribunal awarded a transgender worker $18,000 for discrimination after two co-workers disregarded the worker’s requests to use their preferred name and pronouns.
“Small employers need to be mindful of their obligations to develop policies and create a safe workplace, whether your staff count is two or 2,000,” says Flett. “So many workplaces don’t have those key fundamental pieces and they just don’t have the operational leadership to put those pieces together – they are seen as add-ons when they actually should be pretty fundamental.”
The worker is a transgender male who has presented as a man for more than 20 years. He didn’t legally change his name – his driver’s licence and tax information use the legal name that he was born with – but he used a male name since the early 2000s and masculine pronouns since the 1990s.
In June 2017, the worker was hired as a truck driver by a company called Edenbank in Chilliwack, BC. He moved from Vancouver, so he was allowed to live on the company’s property in a motorhome. He didn’t have a working washroom, so he used the one in the shop and he was frequently there when he wasn’t working.
Transgender worker had preferred name, pronouns
The worker told the floor manager and the dispatcher/office administrator that although his birth name – which the worker called his “deadname” – was still his legal name, he wanted them to use his chosen name and male pronouns.
However, both the floor manager and the dispatcher frequently called the worker by his deadname and used feminine pronouns when referring to him. The dispatcher said she was confused because she was used to seeing his deadname in the logbooks and paperwork.
The floor manager acknowledged the worker’s request but said he had a legal obligation to use the name that appeared on the worker’s government-issued documents. However, other employees used shortened versions of their legal names or nicknames in the workplace.
In August 2018, Edenbank’s owner died and the manager purchased some of the company’s trucks to start his own trucking business called NC Tractor Services. The new owner rented out part of the same building and hired some of Edenbank’s former employees including the worker, who continued to live on the property.
Both the new owner and the dispatcher continued to misgender and deadname the worker. He repeatedly asked them to stop, but it continued. As he was living on the property, the behaviour also happened when he was off-duty and visiting the shop.
The worker also told them that the misgendering alienated him and made him feel unsafe, as they were in a small town with potential dangers of a transperson being outed.
Poisoned workplace
According to the worker, the dispatcher asked him once which washroom he used, even though the workplace only had one washroom. The dispatcher later testified that she only asked because the worker was willing to educate them about being transgender.
The worker also alleged that the owner made him uncomfortable by grabbing his buttocks on one occasion, making sexual comments, bragging about how his penis felt during intercourse, rubbing his buttocks against him when the worker was sitting down, exposing his buttocks, rubbing his crotch against the worker’s back, pretending to hump another driver in front of him, telling him his Mormon religion doesn’t allow for transsexuality, threatening to rub grease on his body and face, and telling him to expose his breast to another truck driver.
On Nov. 27, the worker gave the dispatcher his driving logs and a pamphlet about human rights, asking her not to read it in front of others. However, another employee saw it and commented on it, upsetting the worker. The worker said that he quit and left, although he still lived on the property.
The worker filed a human rights application alleging that NC Tractor harassed him on the basis of his gender identity or expression and had failed to provide a harassment-free environment as required by the Canadian Human Rights Act (CHRA).
The tribunal found that the worker’s treatment by NC Tractor’s owner and the dispatcher were related to his status as a trans man, as misgendering was “intrinsically linked to the worker’s gender identity or expression,” which was a protected ground under the CHRA. The tribunal also referred to decisions by the BC Human Rights Tribunal that stated using the preferred names and pronouns of transgender employees is “a basic obligation that every person holds towards people in their employment” and “pronouns are a fundamental part of a person’s identity.”
Unsolicited and unwelcome
The tribunal also found that the misgendering and washroom question were unsolicited, unwelcome, and not relevant to the workplace, the tribunal said.
As for the owner’s and dispatcher’s reasons for using the worker’s deadname and misgendered pronouns, the tribunal didn’t find them credible. There was no law requiring them to use the worker’s deadname, the tribunal said.
The tribunal noted that intention wasn’t relevant in determining discrimination – it was the impact of the discriminatory conduct that mattered. In this case, neither individual made much effort to respect the worker’s request to use his chosen name and pronouns, said the tribunal.
The tribunal noted that the workplace was part of the worker’s social life as he lived on the property and wasn’t always working when the harassment occurred, but it was all related to employment because the others were working when it took place.
It was a mistake for the employer to allow the worker to live on company property and use the facility after hours, according to Flett.
“[The worker] was frequently in the office after hours for water and use of the bathroom, along with visits for social stimulation, and this is when these offensive conversations and conduct occurred,” he says. “If he hadn’t been living on the property, perhaps none of this would have happened.”
“The first lesson should be to make sure that your workplace is accommodating to trans people, but the second is don’t let your employees live on company property and don’t invite them to frequent the workplace after hours,” adds Flett.
Gender identity and expression
The tribunal found that most of the owner’s actions related directly to either the worker’s gender identity or his body, although some of them – rubbing his buttocks on the worker, exposing his buttocks, pretending to hump another driver, and threatening to rub grease on the worker, to be specific – didn’t relate to the worker’s identity and weren’t discriminatory, the tribunal said.
The tribunal also found that the discriminatory harassment was at least part of the reason why the worker resigned. When he provided the pamphlet on human rights, he felt they didn’t take it seriously and nothing would change, leaving him no choice but to leave, said the tribunal.
The tribunal determined that NC Tractor was vicariously liable for the discriminatory behaviour because it was perpetrated by the owner and an employee. In addition, NC Tractor did not have an anti-discrimination or anti-harassment policy and there was no formal harassment complaint process, said the tribunal.
“The employer has a responsibility to provide a healthy work environment and there were no policies, training, or remedies at the workplace,” says Flett. “So the workplace was put in a negative light as far as any efforts to try and protect [the worker’s] safety and self-respect at the workplace.”
The tribunal noted that the worker was particularly vulnerable because of “the forces of systemic inequality that continue to oppress, marginalize, and discriminate against transgender people,” he was in a small town where being transgender had risks, and he relied on NC Tractor for his accommodation and social life.
Damages for injury to dignity
NC Tractor and the owner were ordered to pay the worker $12,000 for pain and suffering from the discrimination plus $3,000 in special compensation for the owner’s wilful discrimination. The dispatcher was personally ordered to pay $3,000 for her own discriminatory behaviour.
“Apart from the policy pieces that should be in place, [employers] need to really be alive to the impact of words and conduct related to trans employees and trans issues,” says Flett. “The decision helps confirm that intention doesn’t matter, it’s the impact.”
It’s also important for employers to be mindful of what’s happening at the workplace after hours, according to Flett.
“People who are your employees shouldn’t be spending excessive time at the workplace – in this case, conversations unfolded and evolved into far more personal topics of conversation than one would normally expect at a workplace,” he says.
See Bilac v. Abbey, Currie and NC Tractor Services Inc., 2023 CHRT 43.
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If you have any questions or inquiries regarding discrimination at the workplace, or any other employment law matter, contact Zubas Flett Law at 416-593-5844 or questions@employment-lawyers.ca.