Canadian Human Rights Tribunal reinforces protections afforded to transgender employees against workplace discrimination

In a recent decision, the Canadian Human Rights Tribunal (the CHRT or Tribunal) ruled that misgendering and “deadnaming” an employee, despite specific and repeated requests for his gender identity to be respected, constitute discriminatory behaviour that violates the Canadian Human Rights Act (CHRA). 

The ruling reinforces the legal protections afforded to transgender employees under Canadian human rights legislation, including the CHRA, and the obligations imposed on employers for workplace discrimination.

Facts

The complainant is a transgender man who has presented as such for over two decades, using a male name since the early 2000s and masculine pronouns since the 1990s. Despite this, his legal name remains unchanged, and his government documents still reflect his birth name, which the Tribunal refers to as his “deadname.” In late August 2018, he began working for one of the respondents, NC Tractor Services Inc., alongside the other two respondents, NC Tractor’s owner (the owner respondent) and office administrator (the employee respondent) (collectively the individual respondents). 

The complainant alleged the respondents harassed him on the basis of his gender identity or expression and failed to provide a harassment-free work environment, in violation of section 14 of the CHRA. In particular, he claimed that despite his repeated requests to be addressed by his chosen name and masculine pronouns, the individual respondents persisted in using his deadname and feminine pronouns. 

He further asserted that the individual respondents asked him intrusive questions about his transgender status, some of which were of a sexual nature, and that the owner respondent subjected him to unwelcome sexual comments, gestures, and touching. He said the discriminatory harassment he endured ultimately prompted his resignation from NC Tractor in November 2018.

Both individual respondents acknowledged they repeatedly misgendered and deadnamed the complainant, despite his explicit requests otherwise. The employee respondent cited difficulty using the complainant’s chosen name, which she attributed to her frequent exposure to his deadname in workplace documents. She also recognized the inappropriateness of her questions, but claimed they were asked with the complainant’s willingness to educate in mind. On the other hand, the owner respondent refused to honor the complainant’s request, citing a legal obligation to adhere strictly to legal names in the workplace. He justified his refusal by asserting his belief that using the complainant’s chosen name would constitute fraud.

Decision

Embracing the approach of the British Columbia Human Rights Tribunal, the CHRT affirmed the rights of transgender employees to recognition and respect for their gender identity and expression, and the corollary “basic obligation” for all individuals to use their chosen names and pronouns. It recognized the fundamental role of pronouns in shaping identity and the intrinsic link between misgendering and gender identity or expression. The Tribunal also underscored the significant impact of misgendering on the safety and well-being of transgender and non-binary individuals, describing its effects as “humiliating, stigmatizing, psychologically distressing, and dehumanizing.” 

It dismissed the owner respondent’s justification, highlighting the absence of any Canadian legislation requiring using an employee’s legal name in the workplace. Instead, it reaffirmed the obligation under Canadian human rights legislation, including the CHRA, for employers to refrain from discriminating against their employees based on gender identity or expression, which entails respecting their chosen names and pronouns. 

Ultimately, the Tribunal concluded that the individual respondents’ conduct violated section 14(1)(c) of the CHRA. Specifically, it determined that their persistent misgendering and deadnaming of the complainant, as well as the owner respondent’s comments and questions, which undermined the complainant’s identity as a man, constituted discriminatory harassment based on his gender identity or expression. It also found the employee respondents’ questions contributed to the overall impact of the discriminatory harassment endured by the complainant. 

Notably, NC Tractor was held liable for the discriminatory actions of the individual respondents due to its failure to meet the conditions outlined in section 65(2) of the CHRA. The Tribunal cited the owner respondent’s persistent misgendering and deadnaming of the complainant, as well as his failure to address similar conduct by the employee respondent, as grounds for attributing liability to NC Tractor under section 65(1) of the CHRA. 

In light of these findings, the Tribunal awarded the complainant $18,000. This included $15,000 for pain and suffering, with $12,000 attributed to NC Tractor and the owner respondent, and the remaining $3,000 directed at the employee respondent. NC Tractor and the owner respondent were ordered to pay an additional $3,000 in special compensation for the owner respondent’s reckless discrimination. 

Takeaways 

This decision sheds light on the unique challenges faced by transgender employees and strengthens both the legal safeguards provided to them by Canadian human rights legislation, including the CHRA, and the obligations it imposes on employers regarding workplace discrimination and harassment related to gender identity or expression.  

Importantly, it affirms that the rights of transgender individuals to have their gender identity and expression recognized and respected entail an obligation for everyone to use their chosen names and pronouns. Moreover, it establishes misgendering and deadnaming as discriminatory practices under the CHRA.  

Lastly, it serves as a reminder of the importance of employers fulfilling their duty to thoroughly investigate complaints of discrimination and harassment and take appropriate action, as failure to do so may lead to both financial and non-financial liability. 

Given these implications and the evolving legal landscape, employers are encouraged to review and update their policies and practices to ensure compliance and foster an inclusive workplace. Our team is available to provide guidance and support throughout this process.