CA — British Columbia. Ruling in favor of an employee who alleged “discrimination on the basis of gender identity and expression,” a human rights tribunal has declared failure to use a person’s preferred pronouns a violation of the Human Rights Code.

The complaint was filed by a female employee described in hearing records as “a non‐binary, gender fluid, transgender person who uses they/them pronouns.”

According to filings, Jessie Nelson worked as a server for Buono Osteria, a small-town restaurant on British Columbia’s Sunshine Coast.

During the hiring process, Director and General Manager Ryan Kingsberry was notified that Ms Nelson, who had recently “come out as trans,” felt “almost always misgendered” in daily life, and found it essential to be “properly gendered” in the workplace. Mr Kingsberry notified staff of Ms Nelson’s declared identity and pronouns.

Many staff and managers attempted to use the favoured pronouns, despite slip-ups, which Mr Kingsberry issued reminders about. Some staff avoided the new server, which Ms Nelson took to mean they were nervous about making mistakes.

Manager Brian Gobelle “persistently referred” to the employee with “she/her pronouns and with gendered nicknames like ‘sweetheart’, ‘honey'” – and owing to the pink hair dye job – “‘pinky’.” Ms Nelson recognized the nicknames as “traditionally used for women and femme people.” Offended, the employee asked Mr Gobelle to stop, and escalated the issue to upper management when he did not.

Michael J Buono, Director and Executive Chef, and Ryan Kingsberry, Director and General Manager, asked Mr Gobelle to be “as accommodating as possible” to the employee. Mr Gobelle said he was confused and struggling to adjust to the pronouns. The directors began arranging a mediation. They asked the irate employee not to confront Mr Gobelle in the meantime.

In defiance of the directors’ orders, Ms Nelson initiated a heated confrontation with Mr Gobelle. Details of the incident are in dispute. Mr Gobelle, Mr Buono and house manager Nova Melanson say the employee entered the room with “intense” eyes before striking Mr Gobelle on the back with an audible sound. Mr Gobelle called it a “violent encounter” and “physical assault.” Ms Nelson insisted she only placed her hand on Mr Gobelle’s shoulder and sarcastically called him “sweetie.”

Ms Nelson was terminated four days after the incident. During the termination call, Mr Kingsberry initially withheld reasons under a employer’s right to terminate without notice or explanation during the three-month probationary period. When pressed, he said the decision was taken due to the employee being too “militant” and coming on “too strong too fast.”

The former employee filed a complaint with the British Columbia Human Rights Tribunal against the restaurant, Michael Buono, Ryan Kingsberry, Brian Gobelle and Nova Melanson. The complaint alleged discrimination in employment based on gender identity and expression, in violation of section 13 of the Human Rights Code.

During the hearing, Ms Nelson admitted to having behaved poorly.

Tribunal member Devyn Cousineau found that the employee had “used some force on” the manager’s back, as in Ms Nelson’s “own words, they were experiencing a rush of adrenaline and ’emotional chaos’. They were upset and angry. Along with their words, they intended to find some way to hurt Mr Gobelle as he had hurt them. The contact was enough to shock Mr Buono and Ms Melanson. However, I do not accept that it is fair to characterize this as a violent physical assault. It did not hurt Mr Gobelle, and he does not claim it did. Rather, he was surprised by it and the touch was unwelcome.”

The tribunal ruled that Mr Gobelle’s “use of female pronouns and gendered nicknames demeaned [Nelson] and undermined their dignity at work” and showed “indifference to Jessie Nelson’s lived experience.” The tribunal concluded that the behavior “and open hostility to changing his behaviour” constituted discrimination. The lack of urgency in the employer’s response “fell short of what was reasonable and appropriate and sowed the seeds for the altercation that would lead to Jessie Nelson’s termination,” the tribunal decided.

Buono Osteria and Mr Gobelle were ordered to pay the former server $10,000. Buono Osteria, Mr Kingsberry, and Mr Buono were ordered to pay the ex-employee $20,000. The respondents must pay interest until the damage award is paid in full. The money is “compensation for injury to their dignity, feelings, and self‐respect,” the tribunal said.

The restaurant was additionally ordered to, within three months’ time, add “a statement to its employee policies that affirms every employee’s right to be addressed with their own personal pronouns.” The tribunal elaborated:

The restaurant can draft its own language, but it could be something like: ‘Pronouns – All team members have the right to be addressed by their own personal pronouns.’ I also encourage, but do not order, the restaurant to update its policies to use nonbinary, gender neutral language throughout. This would mean, for example, replacing references to men or women with ‘people’ and replacing his/his/she/hers with they/them.

Also within three months, the restaurant must implement “mandatory training, of no less than two hours, for all staff and managers about human rights in the workplace.”

The complaint against Ms Melanson was dismissed.