The Canadian Human Rights Tribunal (“CHRT”) recently ruled that an employer, its owner, and another employee discriminated against a former employee on the basis of gender identity or expression, due to him being transgender (“trans”).
In Bilac v. Shona Abbey, Arthur Currie and NC Tractor Service Inc. [Bilac], the CHRT ordered the employer, owner, and other employee to collectively pay the complainant $18,000 for discriminatory harassment, due to them persistently misgendering and “deadnaming” him, in addition to other discriminatory harassment by the owner.
The Bilac decision illustrates that employers can face substantial liability for discrimination if they treat employees adversely based on their gender identity or gender expression, which includes not using an employee’s preferred name and/or pronouns.
Background
Mr. Bilac is a transgender man who worked for NC Tractor Services Inc. (“NC Tractor”) as a truck driver from August to November 2018. NC Tractor was owned by Arthur Currie (“Mr. Currie”), and Shona Abbey (“Ms. Abbey”) was the company’s dispatcher and office administrator.
Mr. Bilac had been presenting as a man, using masculine pronouns, and using a masculine chosen name (Denny) for more than a decade prior to him being employed by NC Tractor. However, Mr. Bilac never had his first name legally changed to Denny, such that the feminine name he was assigned at birth (referred to by the CHRT as his “deadname”) was still his legal name.
Mr. Currie and Ms. Abbey both admitted to persistently misgendering Mr. Bilac by referring to him with female pronouns such as “she, her, and hers”, despite that Mr. Bilac repeatedly corrected them and asked that they refer to him using masculine pronouns. Moreover, Mr. Currie and Ms. Abbey both admitted to persistently “deadnaming” Mr. Bilac by calling him his deadname, rather than his chosen name Denny, despite Mr. Bilac repeatedly correcting them.
Ms. Abbey explained that she was confused by Mr. Bilac’s request to call him Denny, and that she had difficulty using this name because she routinely saw his deadname in logbooks and paperwork which she handled. On the other hand, Mr. Currie stated that he refused to call Mr. Bilac by his chosen name because he believed that calling someone any name other than their legal name in the workplace would be “unprofessional and illegal”. This was despite that Mr. Currie used nicknames for other employees at NC Tractor on a regular basis.
Additionally, Mr. Currie also subjected Mr. Bilac to various unwelcome comments and questions related to him being trans, such as: (i) Mr. Currie asking Mr. Bilac if he has hair on his buttocks; (ii) Mr. Currie stating that his religion “does not allow for transsexuality”; and (iii) Mr. Currie asking Mr. Bilac “how two women have sex”.
Mr. Bilac ultimately resigned from his employment and subsequently made complaints to the Canadian Human Rights Commission (the “Commission”) against NC Tractor, Mr. Currie, and Ms. Abbie (collectively, the “Respondents”) alleging discriminatory harassment on the basis of gender identify and gender expression. In turn, the Commission referred these complaints to the CHRT.
The CHRT’s Decision
The CHRT held that the Respondents had discriminated against Mr. Bilac in his employment by subjecting him to discriminatory harassment based on his gender identity or expression by persistently misgendering and deadnaming him, in addition to the other unwelcome comments and questions by Mr. Currie.
In reaching this conclusion, the CHRT held that transgender employees “are entitled to recognition of, and respect for, their gender identity and gender expression” and that “this begins with using their names and pronouns correctly”. Further, the CHRT found that the Respondents deadnaming and misgendering Mr. Bilac and Mr. Currie’s other comments/questions amounted to discriminatory harassment, because: (i) this conduct related to Mr. Bilac’s gender identity or gender expression; (ii) it was unwelcome; and (iii) it was persistent enough to create a hostile work environment that undermined Mr. Bilac’s dignity.
In the result, the CHRT awarded Mr. Bilac $18,000 in damages for discrimination, with Mr. Currie and NC Tractor being liable for 90% of the award and Ms. Abbey being liable for the remaining 10%.
The Bottom Line
Although many employers are not aware that gender identity and/or gender expression are prohibited grounds of discrimination under Canadian human rights legislation, ignorance of the law is not a valid excuse for breaching it. Gender identity and/or gender expression are expressly designated as prohibited grounds of discrimination in most Canadian jurisdictions, including under the federal Canadian Human Rights Act and the Ontario Human Rights Code, and in the remaining provinces/territories it has been interpreted to be protected under other prohibited grounds such as gender.
Bilac serves as an important reminder for Canadian employers that they are legally required to use the chosen name and preferred pronouns of transgender employees, or they may face substantial liability for discrimination and related reputational damage. Accordingly, employers should ensure that their managers/supervisors are properly trained on human rights obligations, including the duty to promptly and appropriately address the refusal of a worker to use the chosen name or preferred pronouns of a transgender colleague. Where an employee engages in discriminatory harassment by persistently refusing to respect a colleague’s chosen name or preferred pronouns, it will generally establish cause for discipline, as employers are obligated to maintain a harassment and discrimination free workplace.
If you have any questions regarding your organization’s human rights obligations, or if you require assistance defending against a human rights claim, please do not hesitate to contact us for expert legal advice and representation.
