Both Ontario's Human Rights Code and the Canadian Human Rights Act protect employees from discrimination based on gender identity and gender expression. This is an important right for transgendered employees who are at a higher risk of facing discrimination and tend to face a harder time in finding re-employment after being wrongfully dismissed.

One of the basic rights that all employees have is to be referred to by their chosen name and gender. Simply put, if an employee who was assigned the female gender at birth asks to be referred to using male pronouns and a male name, employers are obligated to respect that request. Courts have recognized that during a transition colleagues may, on occasion, accidentally misgender the transgender employee. However, disregarding an employee's preferred gender pronouns and name after being asked multiple times can lead to a human rights complaint. The employer and upper management in Bilac v. Abbey, Currie and NC Tractor Services Inc. (2023 CHRT 43) learnt this lesson the hard way.

Bilac v. Abbey, Currie and NC Tractor Services Inc. (2023 CHRT 43)

In Bilac v. Abbey, Currie and NC Tractor Services Inc. (Bilac), Denny Bilac is a transgendered man who uses masculine pronouns. Mr. Bilac uses the name Denny but has not been able to change his birthname, referred to as his "deadname,"&rdquo"; on his legal documents. Mr. Bilac worked as a truck driver at NC Tractor. Arthur Currie was the owner of NC Tractor and Shona Abbey was the dispatcher and the office administrator. Both Mr. Currie and Ms. Abbey repeatedly misgendered him and used his deadname, even after being corrected. Mr. Currie was also found to have made inappropriate and harassing comments towards Mr. Bilac relating to his gender identity and expression that contributed to Mr. Bilac's decision to quit. After quitting, Mr. Bilac filed a complaint with the Canadian Human Rights Tribunal claiming that he was discriminated against based on gender identity and gender expression.

The tribunal found that Mr. Bilac was harassed and discriminated against based on his gender identity and gender expression after repeatably being misgendered and deadnamed by both Mr. Currie and Ms. Abbey. Mr. Currie was also found to have engaged in additional acts of discrimination by making comments and asking questions that communicated Mr. Currie's belief that Mr. Bilac was not a man. NC Tractor, which is completely owned by Mr. Currie, was also found liable. It could not rely on a due diligence defence because it made no effort to prevent such harassment. The tribunal noted that NC Tractor did not have a discrimination or harassment policy, an official way to report harassment or discrimination, nor did it offer any human rights or inclusivity training. When determining damages, the tribunal found that Mr. Bilac is entitled to the higher end of damages for pain and suffering, awarding him $15,000. Based on the circumstances, with Mr. Currie being more responsible for the poisoned workplace and never accepting or apologizing for the discrimination, as Ms. Abbey did, the tribunal found that Ms. Abbey must pay 20% of the pain and suffering award ($3,000) and Mr. Currie and NC tractor are liable for 80% of the pain and suffering award ($12,000). The tribunal also awarded an additional $3,000 against Mr. Currie and NC Tractor in special compensation as Mr. Currie and NC Tractor actively refused to respect their responsibility to protect trans employees from workplace discrimination.

Takeaways from the Bilac decision

The obvious takeaway is the importance of respecting employees' chosen gender identity and expression by using their chosen names and pronouns. The tribunal made it clear that human rights legislation is quasi-constitutional and protecting all forms of human rights is one of the employer's most important responsibilities.

This case also highlights the importance of employers taking active steps to prevent harassment in the workplace. This includes taking steps such as having an up-to-date discrimination and harassment policy, having a way to report harassment and discrimination, and providing employees with harassment and discrimination training. By taking such steps you are avoiding the potential that an employee faces discrimination while also creating an opportunity to use the due diligence defence if discrimination occurs in your workplace unnoticed.

How Suzanne Desrosiers Professional Corporation can help

At Suzanne Desrosiers Professional Corporation, our employment lawyers are up-to-date and knowledgeable about employer's human rights obligations. We can help draft workplace policies on harassment and discrimination. We also have a human rights training seminar that can be given to employees and members of upper management both in-person and online. To contact one of our employment lawyers, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.