Fired worker received $ 30,000 after restaurant co-worker used incorrect pronouns

The human rights court found that the worker had been discriminated against because the restaurant failed to address the employee’s gender discrimination, leading to an altercation and subsequent firing.

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A non-binary transgender restaurant employee in Gibsons who was fired after complaining to the owners that the bar manager called her “her” and “honey” received $ 30,000 from the BC Human Rights Court, which upheld a complaint of discrimination.

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The decision was the first to involve a complaint from a non-binary transgender employee using gender-neutral pronouns (they / they).

The “hefty” award is a “sign to employers,” said the plaintiff’s attorney, Adrienne Smith. “It should be a sign that employers need to be respectful. The correct pronouns for individuals are not optional. Employers are not free to address people with the pronouns of their choice ”.

Smith added, however, that “the employee did not receive $ 30,000 because they were called with incorrect pronouns. They got the $ 30,000 because they were fired for being transgender. “

There has been a trend in the last five to six years that has seen human rights courts begin to award higher amounts in cases involving “injury to the dignity” of transgender people, Smith said.

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Jessie Nelson worked for Buono Osteria for about four weeks in the spring of 2019. When Nelson started, the owners were told “how important it was to have the right gender in the workplace.”

Bar manager Brian Gobelle used his pronouns on Nelson and called Nelson gender nicknames, such as “honey, honey and pinky,” depending on the decision. Nelson asked him to stop “and he didn’t.”

“Jessie Nelson felt that (the bar manager) was deliberately trying to hurt them,” said court member Devyn Cousineau in the 42-page decision.

Nelson had suggested at a staff meeting that clients be greeted on gender-neutral terms, and the court heard that this caused resentment among staff, including Gobelle.

Tension mounted between the two and on Nelson’s last turn, Nelson wanted to confront Gobelle about his repeated inability to use his preferred pronouns. The court heard conflicting accounts as to whether management advised Nelson not to speak to Gobelle, and management said they told Nelson not to do so and promised to have a meeting to discuss the conflict.

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But Cousineau accepted that Nelson was not told not to speak directly to Gobelle. What happened in that confrontation was also different. Nelson said they put their hand on Gobelle’s shoulder and made a sarcastic comment and referred to Gobelle as “honey”. Gobelle said it was a “violent physical assault”.

Four days later, owner Ryan Kingsberry called Nelson to tell them they were going to fire them because they came “too strong, too fast” and too “militant.” And they told Nelson, “part of the problem is making sure you vibrate with the team” and they weren’t “a good fit.”

The restaurant told the court that Nelson was fired for insubordination, for speaking to Gobelle on the night of his last shift, and for “assaulting” Gobelle.

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Cousineau, in her decision, said she was “satisfied that Mr. Gobelle’s conduct toward Jessie Nelson amounted to discrimination” because he persisted in the use of feminine pronouns and gender nicknames.

And Cousineau concluded that the employer was “obligated to respond” and its response “did not comply with what was reasonable and appropriate.” By not responding to Gobelle’s gender discrimination, they “sowed the seeds for the altercation that would lead to Jessie Nelson’s termination.”

Cousineau also said that to prove that the employer violated the code, Nelson only had to show his gender identity and the expression was a factor in the decision, not the only nor the main one.

Cousineau also dismissed owner Michael Buono’s view that Nelson touching or hitting Gobelle was “much more serious” than the verbal abuse because in this case, the physical interaction was not “violent” and Gobelle was not injured.

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The physical interaction was taken out of context, disregarding the weeks of gender discrimination, and “its impact was far greater than a single pat on the back.”

Cousineau found that the employer discriminated against Nelson because it “concluded that it would be easier to fire the employee than to meaningfully address any of these issues.”

Cousineau also directed the restaurant to implement a workplace pronoun policy and to encourage, but not command, update its policies and train its staff and managers on diversity, fairness and inclusion.

Smith said this was the first workplace gender abuse case she is aware of that went to a hearing, and that others that are resolved before the hearing stage are generally subject to a nondisclosure agreement, and the agreements would not be made public. .

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In 2015, the Vancouver Police Human Rights Court awarded $ 15,000 to a transgender woman named Angela Dawson for “injury to dignity, feelings and self-respect” when she denied access to medical care in prison. and referred to her as “Jeffrey”.

In 2019, the court ruled on a leaflet distributed by William Whatcott that referred to Morgane Oger, the transgender plaintiff and candidate in the BC provincial elections in 2017, by the name she used to use and which called transgender people ” impossibility”.

The court found that the leaflet violated the human rights code, and ruling speech denying the existence of transgender people is not protected as political speech under freedom of expression laws.

And last year, the BC Court of Appeals issued an order against a father who during court proceedings spoke publicly about his transgender son despite a court order. The court ordered the father to recognize his son’s gender identity and refer to him by the name and pronouns he chose.

And in 2018, the BC Teachers Union filed a human rights complaint against a Chilliwack school administrator who it claimed engaged in hate speech when he opposed LGBTQ + policies in the school district. The court has not yet heard the case.

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