What’s In A Name? $18,000 Awarded To Transgender Man Who Was Misgendered And Deadnamed At Work

March 8, 2024

Rudy Ticzon

The Canadian Human Rights Tribunal (“CHRT” or “Tribunal”) ruled in Bilac v. Abbey, Currie and NC Tractor Services Inc., 2023 CHRT 43 (CanLII), that misgendering and deadnaming an employee who specifically and repeatedly asked to have their gender identity respected is a discriminatory practice that is contrary to the Canadian Human Rights Act (“CHRA”).

The Tribunal affirmed that human rights legislation across Canada, including the CHRA, requires employers to respect the dignity of their employees by not discriminating against them on the basis of their gender identity or expression.

Overview

The Complainant, is a transgender man who uses the masculine pronouns “he, him, and his.” He uses a different name from the name he was assigned at birth, which he has not been able to legally change. The Tribunal referred to this as his “deadname.”

Around the end of August of 2018, the Complainant was hired as a truck driver with a company called NC Tractor Services Inc. (“NC Tractor”), one of the Respondents. The owner of NC Tractor and another employee were the other Respondents. They all worked together since June of 2017, when the Complainant was hired as a truck driver.

The Complainant alleged that the Respondents harassed him on the basis of his gender identity or expression and failed to provide a harassment-free work environment, contrary to section 14 of the Canadian Human Rights Act, RSC 1985, c.H-6. Specifically, the Complainant stated that the company’s owner and the employee Respondent repeatedly referred to him by his deadname and that they misgendered him by using feminine pronouns. The Complainant also alleged that both the owner and employee Respondent asked him intrusive questions about being transgender, including questions of a sexual nature. Finally, the Complainant said that the owner harassed him by subjecting him to sexual comments, gestures, and touching.

At the hearing, the Complainant claimed that the discriminatory harassment eventually led him to quit his job with NC Tractor in November of 2018.

Conclusion and Findings

The Tribunal found that the following conduct of the Respondents constitute discriminatory harassment on the basis of the Complainant’s gender identity or expression under the CHRA:

• Asking the Complainant if he had hair on his buttocks.
• Bragging about how the Respondent’s penis feels during intercourse.
• Saying his religion does not allow for transsexuality.
• Telling the Complainant to show his breast to a co-worker.
• Asking questions of a sexual nature.

The Tribunal concluded that the two individual Respondents harassed the Complainant on the basis of his gender identity or expression contrary to section 14(1)(c) of the CHRA, by repeatedly misgendering and deadnaming him. In addition, one of the individual Respondent’s unwelcome question about which washroom the Complainant uses added to the impact of the discriminatory harassment he experienced.

The Tribunal also found that the owner Respondent engaged in additional acts of discriminatory harassment against the Complainant on the basis of his gender identity or expression, by making comments and asking questions that communicated the Respondent’s belief that the Complainant was not really a man.

Further, the Tribunal found that NC Tractor failed to meet the conditions set out in section 65(2) of the CHRA to avoid liability for the discriminatory harassment engaged in by the individual Respondents, who deadnamed and misgendered the Complainant during the time he worked for NC Tractor.

Finally, the Tribunal decided that the Complainant is entitled to damages for pain and suffering from each of the three Respondents, as well as special compensation from the owner Respondent and NC Tractor for discrimination that was engaged in recklessly.

The Tribunal made the following order:

The employee Respondent is ordered to pay to the Complainant:

• • • $3,000 for pain and suffering experienced as a result of the discriminatory practices.

The owner Respondent and NC Tractor are ordered to pay to the Complainant:

• • • $12,000 for pain and suffering experienced as a result of the discriminatory practices, and
    • $3,000 in special compensation.

Key Takeaways

• This ruling emphasizes the harm transgender individuals can face in the workplace and reinforces the protections against discrimination and harassment provided under Canadian human rights legislation.
• Misgendering and deadnaming an employee who specifically and repeatedly asked to have their gender identity respected is a discriminatory practice that is contrary to the Canadian Human Rights Act.
• Human rights legislation across Canada, including the CHRA, requires employers to respect the dignity of their employees by not discriminating against them on the basis of their gender identity or expression.
• Transgender employees “are entitled to recognition of, and respect for, their gender identity and expression. This begins with using their names and pronouns correctly. This is not an ‘accommodation’, it is a basic obligation that every person holds towards people in their employment”(Nelson v Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 (CanLII) [Nelson v Goodberry] at para 80 citing BC Human Rights Tribunal v Schrenk, 2017 SCC 62 (CanLII) [Schrenk]).
• This decision is a reminder to employers of their obligation to treat complaints of discrimination and harassment seriously and conduct proper investigations when required. Failure to act or address complaints may contribute to a hostile or poisoned work environment and lead to monetary and non-monetary liability.
• It is important for employers to review existing workplace human rights policies and practices to determine if they are in compliance with the law and other obligations. It is good practice for employers to review these workplace policies on a regular basis. Contact an employment lawyer to help you develop your workplace policies.
• It is advisable for employers to contact a human rights and employment lawyer when dealing with discrimination and harassment complaints.

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