Introduction

The British Columbia Human Rights Tribunal (the "Tribunal")1 held that an employer's decision to terminate an employee was in connection with the employee's efforts to address discrimination in the workplace. Consequently, the employer was liable for discrimination. This decision reminds employers that where employees are confrontational or aggressive as a result of a discriminatory working environment, discipline by an employer for that aggression could be a violation of the Human Rights Code  (the "Code"). 

What happened?

The complainant was a non-binary, gender fluid, transgender person who used they/them pronouns. They worked as a server for the respondent restaurant. During their employment, the bar manager at the restaurant, who was also a named respondent persistently referred to the complainant with female pronouns and unwanted, gendered, nicknames. The complainant repeatedly asked the bar manager to stop, and he did not.

The employer had a harassment and inclusion policy. They brought their concerns about the bar manager's discriminatory conduct to management. While management spoke to him and instructed him to use the complainant's name and correct pronouns, the conduct persisted. When the complainant raised the issue with management again, they were told that the issue would have to wait because the employer was addressing other performance concerns with the bar manager and did not want to "pile on" to him too much. Ultimately, the complainant was fired after their attempt to address this conduct with the bar manager led to a heated encounter. Pressed to explain the termination, the employer advised the complainant that they had simply come on "too strong too fast" and were too "militant".

What did the Tribunal Decide?

The Tribunal noted that while the situation was not a case where the employer was indifferent or took no steps to address the conduct, the response to the complaints lacked any sense of urgency. It was not reasonable or appropriate for the employer to have asked the complainant to endure discrimination until the employer found an opportune time to talk to the bar manager 2.

The Tribunal cited past human rights case law, which advised that where employees are confrontational or aggressive as a result of a discriminatory working environment, discipline for that aggression is a violation of the Code, which the Tribunal found to be the case for the matter before the Tribunal 3 . Further, the Tribunal held4:

  • There was a clear connection between the complainant's gender identity and their termination. They were terminated because of how they responded to discrimination. They were held to a higher standard of conduct than the bar manager, and the discriminatory context of the dispute was ignored;
  • Ultimately, the employer concluded that it would be easier to terminate their employment than to meaningfully address any of these issues. In doing so, they discriminated against the complainant; and
  • The negative response that some staff, and at least one manager, had to the complainant's suggestions relating to a more inclusive environment led the employer to conclude that they were not a good "fit" and were coming on "too strong too fast" and – ultimately – to terminate their employment. This was directly connected to their gender identity.

Having found that the respondents discriminated against the complainant, the Tribunal awarded a global award of $30,000 in damages, which the employer was responsible for. 

Takeaway for Employers

This decision is another reminder to employers that reports of discrimination and harassment in the workplace must be taken seriously. The employer in this decision did take some steps to address discrimination, however, when the discrimination persists, it is not reasonable to allow employees to endure discrimination until the employer finds an appropriate time to respond; the employer must respond with a sense of urgency.

This decision also warns employers that where employees are confrontational or aggressive as a result of a discriminatory working environment, discipline for that aggression could be a violation of human rights legislation. 

Footnotes

1.Nelson v. Goodberry Restaurant Group Ltd. dba Buono Osteria and others, 2021 BCHRT 137 (CanLII).

2.Ibid, para. 93 and 2. 

3.Ibid, para. 9.

4. Ibid,  para. 17-21.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.