Discriminatory Language Results in Liability for Employer
Nov 2021 Charity & NFP Law Update
Published on November 25, 2021

By Barry W. Kwasniewski

   
 

The Human Rights Tribunal of Ontario (the “Tribunal”) found an employer and its owner/manager liable for damages when they failed to appropriately respond to employees’ concerns that the owner/manager Jamie Gallagher had used a derogatory slur to refer to them and additionally that he failed to address them by their preferred pronouns. The March 30, 2021 decision of EN v Gallagher’s Bar and Lounge arose out of allegations by three employees (the “Applicants”) who had been employed by the Respondents, Jamie Gallagher, and his restaurant, Gallagher’s Bar and Lounge (the “restaurant”). Neither Mr. Gallagher nor the restaurant responded to these allegations before the Tribunal.

In 2018, when the relevant events took place, the Applicants identified as gender queer and/or non-binary trans and used they/them pronouns. One of the Applicants had asked Mr. Gallagher to refer to themselves and the other kitchen staff using they/them pronouns. The Applicants alleged that Mr. Gallagher mis-gendered them during their employment.

In addition, on June 21, 2018, an employee told one of the Applicants that days earlier on June 10, they had heard Mr. Gallagher use a slur when he said to a customer words to the effect of “I have four trannies in my kitchen.” In the employee’s follow up conversation with Mr. Gallagher, he reportedly denied using the word “trannies” and complained that the employees were too sensitive. The Applicants did not find Mr. Gallagher’s denial to be credible. On July 7, 2018 two of the Applicants provided written notice from their lawyer of their concerns, but Mr. Gallagher did not respond. As a result, they became increasingly concerned that their employer was not taking their safety, dignity and privacy in the workplace seriously. By July 21, 2018 each of the Applicants had quit working for the restaurant due to Mr. Gallagher’s disregard for their safety, dignity and privacy.

Mr. Gallagher’s and the restaurant’s lack of response to the allegations brought before the Tribunal was deemed an acceptance of all allegations set out in the application. The Tribunal found that Mr. Gallagher discriminated against each of the Applicants in their employment because of their gender identity, gender expression and sex. The slur was egregious and caused the Applicants to fear for their safety. There was no meaningful response to the Applicants’ concerns raised at various times, including through their lawyer. The restaurant was found liable for Mr. Gallagher’s actions as per section 46.3 of the Human Rights Code, which deems an act done by an officer or agent of a corporation in the course of his or her employment to be an act done by the corporation. As a result, Mr. Gallagher and the restaurant were jointly and severally liable to pay the Applicants amounts for their wage losses (ranging from $2000 to $6000 each, depending on their original hourly wage and average hours of work), as well as compensation for injury to dignity, feelings and self-respect ($10,000 for each Applicant). The Applicants were not awarded a monetary remedy with regard to Mr. Gallagher’s misgendering because they did not provide the Tribunal with particulars. However, the Tribunal was clear that intentional incorrect pronoun usage could constitute adverse treatment

Charities and not-for-profits should be aware of their responsibilities to provide safe and respectful workplaces for their employees, in accordance with human rights laws. They should also be aware of the consequences of not responding to a human rights claim which may result in a deemed acceptance of the allegations made against them.

   
 

Read the November 2021 Charity & NFP Law Update