The BC Human Rights Tribunal ruled on Sept. 29 the restaurant had violated the province’s Human Rights Code, which prohibits workplace discrimination based on those “protected characteristics.”
Tribunal member Devyn Cousineau made the award as compensation to server Jessie Nelson for unjust treatment experienced during a month of employment in 2019 after which they were fired.
The tribunal’s hearing on the matter occurred in late July 2021. The 42-page reasons for decision document describes Nelson as “a non‐binary, gender fluid, transgender person who uses they/them pronouns.”
The document states that Nelson’s preferred pronouns were known to management when they began working subject to a three-month probationary period on May 27, 2019. It also says that management made efforts but did not follow up on actions to ensure Nelson was addressed as requested by the workplace team.
The tribunal found that restaurant bar manager Brian Gobelle discriminated against Nelson by persisting to refer to them with female pronouns and gendered nicknames including “sweetheart,” “sweetie,” and “honey.”
It states that he also violated the Code by demonstrating hostility towards their ideas for a more inclusive workplace and “by being rude and uncooperative.”
“Use of the correct pronouns for transgender people is not optional, they are a minimum of basic respect and a legal requirement,” Adrienne Smith, Nelson’s lawyer, told Coast Reporter.
Smith, a Vancouver-based civil rights lawyer, uses they/them pronouns. They stated that the decision was the first time the tribunal has dealt with a non-binary person who uses gender-neutral pronouns asking that those be used in the workplace to demonstrate respect for their rights.
Smith said they believe the decision will have a wider reach for the restaurant industry. “Many servers are in the position that my client was in … being called nicknames in a way that can be quite unwelcome in the workplace.
I’m hopeful that the case will have an impact beyond the area of ‘trans law’ and will make work a little more workable for servers and all restaurant employees,” said Smith.
The tribunal also found that restaurant co-directors Michael Buono and Ryan Kingsberry discriminated against Nelson through the delay in responding to their complaints about the bar manager’s behaviour and the firing.
The decision says that “while an employer may terminate a probationary employee without cause and without notice, they cannot terminate them for any reason connected to the personal characteristics protected under the Code.”
Buono explained to the tribunal that Nelson was the first openly non‐binary person to work at the restaurant. The hearing’s record indicates that while most staff made best efforts to address Nelson properly, Gobelle resisted, despite reminders from management to do so.
It states that there was “tension” in the working relationship between the two employees, which Nelson said caused them personal distress and made doing their job more difficult. It notes that the “tension” was evident to other employees and management.
Nelson made requests for assistance, according to the tribunal decision record, but management had not secured a correction to Gobelle’s behavior by June 23. After the restaurant closed that evening, Nelson and Gobelle had heated exchanges both in private and in front of Buono and other staff.
The tribunal heard testimony about Nelson touching Gobelle’s back during the incident that was witnessed by the other parties. Buono testified that in his assessment, the former server was the “obvious aggressor” in what he had seen.
Considering the accounts of the two involved and the witnesses, Cousineau ruled, “I do not accept that it is fair to characterize this as a violent physical assault.”
The document says the decision to fire Nelson was made after those altercations. Kingsberry telephoned Nelson to tell them on June 27. Tribunal testimony was given that while Kingsberry had previously told Nelson that “they were a great server and that he was happy with their performance,”
In their complaint to the tribunal, Nelson said it was their understanding that they were being terminated because of their gender identity, even though Kingsberry never used those words. They filed their complaint with the tribunal on March 24, 2020.
The tribunal decision also requires the restaurant adjust staff policies and education related to human rights, diversity, equity and inclusion in the workplace within three months of the decision.
“There are lots of folks that deliver transgender inclusion training and there should be no impediment to being able to meet that part of the order. This type of training is readily available and should not have to be ordered by the tribunal,” said Smith.
Restaurant management declined to be interviewed by Coast Reporter on the matter. In an email, Buono provided a statement which was also posted to the restaurant’s social media accounts on Oct. 1.
“As the tribunal decision says, our restaurant has always had an understanding of discrimination and stated commitment to creating an inclusive space for staff and customers. It also noted we took steps to support the staff involved.
“We understand that we did not do as well as we should have done. Our management will be taking steps to ensure that all staff are treated with respect, including use of their preferred pronouns, and that no staff uses derogatory comments about other staff or customers. We are committed to implementing better training for management and staff.”
The statement concluded: “We cannot change what happened in the past, but we have and will continue to make our restaurant a welcome place for everyone who works and dines with us.”
Cousineau ruled that the award of $30,000, the amount requested by Nelson, was appropriate and that as the employer, the restaurant is liable for the entire amount. The ruling states $20,000 of the total relates to actions of Kingsberry and Buono and that $10,000 was attributed to the behavior of Gobelle.
The tribunal dismissed the portion of Nelson’s claim against the restaurant’s front-of-house manager at the time, Nova Melanson. The decision says that although Melanson was aware of and did not intervene in the discriminatory behaviors, she did nothing in violation of the Code.
Acknowledging that it can feel challenging and confusing for some people meeting and working with individuals using non-binary pronouns for the first time,
they remarked that “good faith efforts is all that is required… I can remember a time when the title ‘Ms.’ was considered ground-breaking and too confusing to be used in the workplace and we got over that. This is an opportunity to update our language.”
摘譯
（註：我對加拿大的司法體系不熟，這段不確定decision document到底是什麼）
文件說他違反了人權法案，證實他有惡意，違背了一個包容的職場原則，粗魯且不合作。
判決說：「當雇主無緣由無通知終止員工的適用期，是不可以基於被法案保障的個人特質的，任何相關的理由都不行。」
考慮到兩造與證人的陳述， Cousineau裁決：「我認為，把這個視為暴力的肢體攻擊是不公平的。」
我最近對於跑很快國家都在做甚麼很感興趣，也順便給大家看看。
聽說有人抱怨非二元都沒有被關注，我這不就來了嗎？
像是勒瑰恩的《黑暗的左手》，裡面的人理論上沒有分男女的。但是這整本看完，人們腦子裡的形象都會偏現實中的男性。有人試過把他換成她，就完全不一樣了。看到這個說法我當時回顧了一下我腦中的想像，這是真的。
但這多少也可以透過訓練，去抹平這種刻板印象。她們的倡議，倒不是強制，而是這個小動作就有助於讓人們的腦中先想到女性。算是個反制約的訓練。
https://crossing.cw.com.tw/...
他會隨著女性嶄露頭角而改善，但並不是那麼快反轉。
不過同志家庭愈來愈普遍後醫師的身分又有更多可能，謝謝您的分享！我是這麼認為
我真的覺得他很敏感但我不知道怎麼唸，mix嗎？
they them their真的很難強迫替換，因為日常語言的習慣這個字就是複數，我看過比較折衷的辦法就是都不要用代名詞，都用名字來稱呼。
用Ms.來替換Miss或Mrs.還是比較簡單的，Ms.這個字本身沒有其他意義，放的位置也很簡單就是取代。
搬運在噗友噗上的留言：
我覺得問題在法官認定公司展現出來的誠意不足，儘管公司已經展現樂意僱用非二元人士，也做了這麼多事情教育其他員工，已經證明了除了一名經理以外大家都配合，卻不能開除一名引發劇烈爭吵且動手攻擊的員工(無論這個員工對經理有沒有足夠的殺傷力)。
一般人看了只覺得公司真倒楣。
一個實習不到一個月的服務生，跟經理相比，公司正常來說都會覺得經理對公司貢獻比較大啊。
在13.12.1的那個例子裡，加拿大人權法庭說當有符合資格的跨性別應徵者時，雇主如果選擇雇用其他不更具資格的人選、或在拒絕跨性別者之後繼續以相同條件招募，雇主必須提出合理的、無關歧視的理由說明為什麼不錄取該跨性別者。我猜這代表雇用是應該的，不能算作誠意。
好強的buff
不過台灣的餐飲業是隨時都在缺人啦．只要有手有腳聽得懂人話的基本上都會上，加拿大我就不知道了。
如果有人要拿女人的職場歧視來類比，有哪個女人因為性別錯稱告公司就能獲賠幾十萬的？或是被叫Miss或Mrs.就能判賠？
完了我覺得最近都在拉低跨在我同事心中的形象（
跨性別遭遇的職場歧視：「他用SHE/HER叫我！」
指引13.12的第二段說這種認為跨是大佛的想法是「未經證實的刻板印象或負面假設」(unfounded stereotypes or negative assumptions)…
2019年的報導
如果法庭裁罰那個一直故意錯稱them的人我覺得可以理解，但也不能是過高的金額。
今天這個官司裡面，我認為公司做的事情已經很充分了。
性別錯稱會暴怒比較常見的還是跨女呢，這樣我覺得頂樓的非二元真是非二元之光
跨女表示難道我看起來應該被稱為Sir嗎？
有趣的是，很多人以為Kun是男性專用的稱謂，但其實上男對下女也可以稱呼Kun
而san是最基本也不會失禮的
倒是Chan用來表示親暱，友人之間作為暱稱在男性身上使用chan並不少見
有點難以想象
真要說日文裡比較能體現性別差異的，應該是男女用語的差異（我要找找有沒有例子
裡面有一小段只有對鑽石的讚嘆，但可以從語氣跟尾語來分辨說話者是男性還女性
不過日語用詞男女差異也不是一直都有，又或是同個用法，男女在口語上語調會不同
至於會舉這個，是以前語言學跟文學課程有提過
現在日常生活比較難分辨
倒是男性的話有聽過他們用（不過語調就不是女性語調了
真正讓人權利受損的是，明明知道受到差別待遇，受到不友善對待，卻還要求別人忍氣吞聲。這，就是台灣現在的勞權現況。也是那些說跨性別工作權會受損的人在做的事情。
女性被職場性騷擾? 一定價錢談不攏
跨被稱呼錯稱? 你罪該萬死
看到奇怪的跨當然就不錄用啦，到時候再苦自己是因為跨而找不到工作，不就是種什麼因得什麼果
我看到你拿女人的生理與困境來幫跨擦脂抹粉只覺得可笑，就像上面早就討論過的，哪個女人可以Mrs.或Ms.被叫錯就控訴得到賠償？哪個女人遇到的職場性騷擾僅僅是被錯稱？主要只有女性擔負育幼責任依然是女人現況下的職場困境，你嘴巴上舉產假當例子根本不是真正的關心。