The evolution of gender identity in the workplace - is sorry good enough?

Employers have always had an obligation to ensure that all employees are treated with the same level of dignity and respect, and free from bullying and harassment of any kind. But how that obligation plays out in the workplace has evolved, and continues to evolve, over time.

A good example of this evolution is the issue of transgender and gender diverse (i.e., non-binary) employees, name changes that may result from transitioning, and the appropriate use of pronouns that are consistent with an employee’s identity. Many transgender and some gender diverse people will change their name to coincide with their new life. A transgender person’s old name is referred to as their “deadname” and being called by one’s deadname is referred to as “deadnaming,” which can be deeply offensive and triggering.

Being deadnamed is not a question of accommodation in the workplace. As explained by the British Columbia Human Rights Tribunal in Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137, transgender employees, like any other employee in the workplace, are entitled to the basic obligations of using their names correctly.

In a similar sense, using an employee’s pronouns can be fundamental to a transgender person’s identity. Just like a name, a pronoun is tied to an individual’s fundamental truth and, accordingly, using correct pronouns validates and affirms a transgender person as equally deserving of respect and dignity.

The discrimination framework

Discrimination occurs where an individual experiences harassment or other adverse treatment associated with a prohibited ground of discrimination in matters related to employment. In order to establish a prima facie case of discriminatory harassment contrary to federal or provincial human rights legislation, an applicant must establish that the behaviours they have complained about were related to a prohibited ground of discrimination, were unsolicited or unwelcome, and were persistent or serious enough to create a hostile work environment (Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC)).

Oftentimes, cases of gender- and sex-based discrimination before human rights tribunals across Canada involve examples of clear harassment and violence in the workplace. These cases are easier, on their face, as they have a similar story each time: a perpetrator, a wrongful act that is clearly discriminatory, and a sympathetic victim with whom people can relate.

However, the case becomes less clear when examples of discrimination are related to everyday interactions. Misgendering or deadnaming can occur frequently in the workplace if management and employees in the workplace are not appropriately trained. It can be a point of friction in the workplace and often is met with a brief apology and a promise to “try better next time.” But at what point does misgendering or deadnaming rise to the level of harassment and/or discrimination?

This question and more was recently addressed by the Canadian Human Rights Tribunal in Bilac v. Abbey, Currie and NC Tractor Services Inc., 2023 CHRT 43 where a transgender employee who was repeatedly misgendered, deadnamed and harassed was awarded $18,000 in damages.

Misgendering is discrimination

Mr. Bilac worked as a truck driver for NC Tractor from August to November of 2018. Shortly after he began working with the individual respondents, Mr. Currie and Ms. Abbey, the applicant informed them that although his deadname was still his legal name, he used the name Denny and masculine pronouns and asked them to do the same.

Currie only called the applicant Denny on his last day of work and Abbey never referred to him as Denny. Abbey also asked the applicant which bathroom he used, despite there only being one bathroom at the facility, and asked personal questions about how the applicant had intercourse. The deadnaming, misgendering and inappropriate comments persisted for several months until Bilac tendered his resignation.

Both individual respondents acknowledged that they misgendered and deadnamed Bilac even after being corrected. Abbey later apologized to Bilac for using his deadname at the hearing. Currie also apologized at the hearing but remained steadfast in his belief that calling someone by anything other than their legal name in the workplace was unprofessional, illegal, and fraudulent.

The tribunal found that using feminine pronouns and Bilac’s deadname were clear examples of misgendering, which was intrinsically linked to Bilac’s gender identity and gender expression. The application was therefore connected to prohibited grounds of discrimination and proceeded to the next step in the discrimination framework.

Next, the tribunal agreed that the repeated nature of the misgendering, particularly given that Bilac continued to correct Currie and Abbey, was both unsolicited and unwelcome. The tribunal also found that this conduct was serious enough to create a negative work environment that undermined Bilac’s dignity. Accordingly, Bilac was able to establish a prima facie case of discrimination on the basis of repeated misgendering and deadnaming.

The tribunal considered the nature of the discrimination, the social context and vulnerability of the applicant, and the impact of the discrimination in finding that an award of $15,000 for pain and suffering was appropriate. It also awarded special damages against Currie and the employer in the amount of $3,000 for engaging in discriminatory practices recklessly.

Has a new standard been set?

Intention has not traditionally been a consideration when determining whether discrimination has occurred in the workplace. An individual does not have to intentionally try to embarrass a transgender employee by using their incorrect pronouns for it to be considered discrimination. Instead, human rights legislation across Canada is primarily focused on the impact of the discriminatory conduct or behaviour.

However, an interesting new trend has developed through recent cases such as the Bilac decision, where a person’s intentions can be considered to be either mitigating or exacerbating when it comes to assessing the harm caused by misgendering a transgender employee. For example, Justice Abella for the Supreme Court of Canada confirmed that, where an employee is callous or careless about pronouns or deadnames, the harm is magnified for the transgender individual (British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62). This approach was adopted when considering the remedy in the Bilac case, as the reckless nature of Currie and the employer were considered aggravating to the impact experienced by Bilac.

While many may still struggle with gender-neutral pronouns, despite having the best of intentions, misgendering and deadnaming will likely still occur in the workplace. Apologies are, of course, encouraged in these circumstances, but creating an environment of inclusivity in the workplace has evolved to mean more than an apology. Instead, it may in fact require positive steps to ensure employees are appropriately educated on the impact that misgendering and deadnaming can have, reflecting the importance to dignity to be called by one’s proper name.

Lorenzo Lisi is a partner and leader of the Workplace Law Group and Zachary Sippel is an associate and member of the Workplace Law Group, both at Aird & Berlis in Toronto.