Meeting 34: Sexual Violence and Gender-based harassment (PART II)

Complainant: Jessie Nelson is a non‐binary, gender fluid, transgender person who uses they/them pronouns.

Respondents: Buono Osteria (restaurant in BC’s Sunshine Coast), Mr. Buono (director and executive chef), Mr. Kingsberry (director and general manager), Ms. Melanson (house manager) and Mr. Gobelle (bar manager).

Facts

Background

In May 2019, Jessie Nelson started to work as a server in Buono Osteria.

When they started, Jessie Nelson talked to Mr. Kingsberry about how important it was to them to be gendered correctly in the workplace.

Mr. Kingsberry was supportive in speaking to the restaurant staff and ensuring that Jessie was properly gendered in their workplace.

Jessie Nelson was the first non‐binary person to work at the restaurant, and it was a new experience for many of the staff and managers to use they/them pronouns.

Mr. Kingsberry and Ms. Melanson were proactive and diligent about using the proper pronouns and correcting themselves immediately if they made a mistake. Mr. Kingsberry also corrected staff who used the wrong pronouns for Jessie Nelson.

Mr. Gobelle, however, persistently referred to Jessie Nelson with she/her pronouns and with gendered nicknames like “sweetheart,” “honey,” and “pinky.”

Jessie Nelson repeatedly asked Mr. Gobelle to stop; however, the conduct persisted.

Management became aware reasonably early on that there was a conflict between Mr. Gobelle and Jessie Nelson.

Staff meeting

In mid-June, during a staff meeting, Jessie Nelson spoke up about how staff could make the restaurant a more inclusive place for trans guests by using gender-neutral language.

Some staff reacted defensively and offered resistance. For example, Ms. Melanson testified that she felt that Jessie Nelson was coming off very “strong.”

After this meeting, the tension between Jessie Nelson and Mr. Gobelle intensified. He made their job more difficult by being uncooperative and non‐communicative.

Jessie Nelson expressed concern about their employment being negatively impacted because of their gender identity to Mr. Kingsberry. They asked Mr. Kingsberry for feedback about their performance and talked to Mr. Gobelle about correctly using their name and pronouns.

Mr. Kingsberry told them they were a great server and happy with their performance. He assured them that he would talk to Mr. Gobelle but said that it might take a little time because the restaurant was addressing other issues with Mr. Gobelle, and “he did not want to ‘pile on’ to him too much.”

Final incident

On June 23, they approached Mr. Kingsberry to ask whether he had spoken to Mr. Gobelle. He had not, but Mr. Kingsberry told them that he and Ms. Melanson were going to talk to Mr. Gobelle the next day.

Jessie Nelson felt they could not wait any longer for management to deal with the issue and asked him if they could talk to Mr. Gobelle directly. Mr. Kingsberry agreed.

Jessie Nelson waited for the service to slow down and then approached the bar to talk to Mr. Gobelle. He refused to chat. He was working.

��ϲʿ��ֳ� 20 minutes later, Jessie Nelson saw Mr. Kingsberry standing at the bar with Mr. Gobelle. Again, they asked Mr. Gobelle to step outside and talk to them. He ignored them. They had fully expected Mr. Kingsberry to back them up, but instead, they felt that they were being left to deal with the situation entirely on their own.

Mr. Buono observed this interaction from afar but did nothing to intervene.

After the restaurant closed, Jessie Nelson saw that Mr. Gobelle was smoking outside. They followed him out there and started the conversation by expressing that they sensed that Mr. Gobelle did not like them and did not understand why. They recall that Mr. Gobelle laughed and responded, “You’re trying to police our language and tell me how to speak and what words to use.”

Mr. Gobelle felt “this was unfair and went against what his grandfather had fought for in the war.” Jessie Nelson understood this to mean that their requests somehow impaired Mr. Gobelle’s freedoms – a position they found ironic given that freedom and equality were the foundation of their demands of Mr. Gobelle.

Jessie Nelson recalls that Mr. Gobelle described them as “militant” – a word that would later be used to explain why their employment was terminated.

At least three times during their conversation, Mr. Gobelle called Jessie Nelson sweetie, sweetheart, or honey. Each time they told him not to.

Jessie Nelson recalls that the conversation ended abruptly. Mr. Gobelle said, “this conversation is over; I’m done,” and started to walk by them.

Mr. Gobelle stormed into the dining room, slamming the sliding door behind him and saying, “I can’t do this anymore – I’m outta here.”

Jessie Nelson, who entered the dining room a few seconds later, said something like, “it’s ok, sweetie – I’m leaving, so you don’t have to.” Then, Mr. Gobelle affirmed that Jessie Nelson “smacked” him on the back.

Mr. Buono reassured everyone that the restaurant would not tolerate Jessie Nelson’s conduct. Because Jessie Nelson was still in their probationary period, he decided that the restaurant could exercise its right to terminate them without notice and explanation.

Five days after the incident, Mr. Kingsberry terminated Jessie Nelson’s employment by phone call. When they requested an explanation, Mr. Kingsberry said they were being terminated without cause during their probationary period. Eventually, he told Jessie Nelson that they had just come off “too strong too fast” and were too “militant.”

Issues

Did Mr. Gobelle’s conduct towards Jessie Nelson in the workplace amount to discrimination?

Was the employer’s response reasonable and appropriate?

Were Jessie Nelson’s gender identity and expression factors in the termination of their employment?

Analysis

Mr. Gobelle’s conduct towards Jessie Nelson amounted to discrimination.

Trans 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.
For many people, the concept of gender-neutral pronouns is new. They are working to undo the “habits of a lifetime.” When a person is genuinely trying their best and acknowledges and corrects their mistakes, the harm will be reduced. These mistakes, though painful, may not lead them to file a human rights complaint.
Though Mr. Gobelle may have struggled to adapt to a “new” way of talking, he was obliged to at least try.

The employer was obliged to respond and correct.

The managers’ response to Nelson’s complaints lacked any sense of urgency. If it was necessary to wait, the employer should have put something in place to protect them from discrimination during their shifts.
The employer failed to appreciate how serious those complaints were and the impact of them having to attend work each day alongside a person who could, at any time, degrade and discriminate against them in their workplace.
The employer made no effort to investigate what happened between them or determine whether “conciliatory conversation” was possible.
The employer is responsible for ensuring a healthy work environment. To correct Mr. Gobelle’s behaviour was the employer’s responsibility and not Jessie Nelson’s. This was not a conflict between two employees who held different opinions or did not like each other. This was a matter of discrimination.

Jessie Nelson’s gender identity was the factor in their termination.

The employer took Jessie Nelson’s conduct on June 23rd as the “starting point of the interaction” rather than Mr. Gobelle’s discriminatory conduct.
The employer ignored the inequality between the two sides in the conflict and its connection to Jessie Nelson’s gender identity.
Whereas for Jessie Nelson, the issue was their right to a workplace free of discrimination, the issue for Mr. Gobelle was his insistence that he would not change his behaviour to avoid hurting his co‐worker. These are not equivalent.
Ultimately, the employer concluded that it would be easier to terminate their employment than address any of these issues meaningfully. This situation demonstrates the dangers of “fit” or workplace “vibe” regarding equity‐deserving groups.

Decision

Jessie Nelson was discriminated against in their employment.
Buono Osteria was liable for the conduct of its employees.
The Tribunal awarded a general $30,000 for injury to dignity, feelings, and self-respect.
The Employer was also ordered to add a statement to its employee policies affirming each employee’s right to be addressed by their preferred pronouns and implement mandatory human rights training for staff and managers.

Rylee James Freeman Hart v F & P Manufacturing Inc. 2021 HRTO 995

Facts

Rylee James Freeman Hart, the applicant, alleges discrimination with respect to employment because of gender identity and gender expression contrary to the Ontario Human Rights Code.

In 2012, the applicant was hired by the respondent, F & P Manufacturing Inc, as a female employee.

In 2014, the applicant informed his supervisors at work that he was beginning the gender transition process, including plans for his name change.

In February and March 2015, the applicant underwent certain medical procedures.

Before going on medical leave, Hart communicated his accommodation needs in the workplace to human resources, such as neutral change rooms and restrooms. When he returned, no attempts had been made to provide him with his requests.

Changes were not implemented until May 2015. The person responsible for health and safety at the workplace stated that the company was doing its best. These were circumstances that the company had not experienced before.

The applicant faced difficulties due to many intrusive questions and inappropriate comments from co-workers. The applicant stated that although he made numerous suggestions for how things should be or could be improved, he was primarily left to figure out how to deal with the challenges of functioning among fellow workers who knew him before the transition.

He decided to change jobs in September 2017.

Issues

In the matter of timeliness, did the discriminatory actions and events that the applicant described (including the intrusive and often offensive questions and comments that he faced from fellow workers, communications from time to time with health and safety staff, and the ineffective interventions and accommodations offered by management) amount to a series of events?

Analysis

Each time the applicant was subjected to an intrusive or offensive comment, such an event could be deemed a new incident of discrimination.

The applicant described questions and damaging allegations and observations that he received from fellow workers about gender identity and gender expression, such as the anticipated anatomical changes that he was seeking through surgery; the comments about “what it takes to be a guy” and why he is not that; the issues relating to his use of gender-appropriate washrooms and change rooms at the workplace; and his voice as it changed during the transition process.
The respondent stated that the corporate respondent is not liable for the alleged actions of the employees, and therefore, the allegations do not implicate the respondents' liability.
The Tribunal found that the Application, as a whole, is in time, and the allegations amount to a series of incidents.

Decision

The Application will continue in the Tribunal’s process to merit a hearing to decide whether the respondent breached the applicant’s Code-protected rights by allowing workers to harass him, not accommodating his gender identity and failing to investigate his allegations of harassment.

Caesar Lewis v Sugar Daddy’s Nightclub. 2016 HRTO 347

Facts

The applicant attended the respondent nightclub along with three friends.

After some time, Caesar Lewis and his friends needed to use the washroom. The applicant and his male friend entered the men’s washroom. The applicant testified that he prefers to use the men’s washroom because he identifies as male; moreover, he has had some negative experiences using women’s washrooms, including stares and negative comments.

While in the washroom cubicle, the applicant was interrupted by an aggressive banging on the door. Seconds later, a security guard dragged the applicant out of the cubicle while still urinating. He grabbed the applicant by the hair and shirt and proceeded to drag him out of the washroom, through the entire club, and out the front door.

As the applicant and his friend stood outside, they watched the security officer speak to two other security officers. All three of the officers began to laugh and point in the direction of the applicant and his friend.

One of the other security officers approached the applicant and his male friend and demanded to see their passports. The security officer whipped the passport at the applicant’s male friend. He got very close to the applicant’s friend’s face and said, “If you come here and use the male washroom again, little girl, you and your friend will be dragged out, and we’ll bring you behind the building this time.”

The applicant and his male friend wanted to go home as it was freezing cold. When the applicant’s male friend demanded the return of their coats, the security guard grabbed the applicant’s friend by his face, pushed him against the wall and said, “Didn’t I tell you faggot dykes to leave.”

The applicant stepped in, tried to remove the guard’s hand from his friend’s face and demanded that he let go. Then all three security guards started to assault the applicant physically.

The applicant felt like he had been hit by a car; he was embarrassed as he could hear some bystanders cheering and encouraging the security guards and others yelling for them to stop.

The next day, the applicant was still not feeling well and attended the hospital.

Issues

Is the applicant a member of a group protected by the code?

Was he subjected to adverse treatment?

Were his gender identity, sexual expression, or sexual orientation factors in the adverse treatment?

Analysis

The Tribunal has recognized that transgender personnel have historically been a disadvantaged group who face extreme social stigma prejudice in our society.

The Tribunal has recognized circumstances in which a transgender person may not be treated similarly to others with their lived gender.
Many accept trans people and other gender non-conforming individuals but find the concepts new, confusing, and challenging to integrate into traditional society, such as washrooms, locker rooms, change rooms and other gender-specific services and facilities.
The applicant self-identifies as a transgender neutral, questioning a transgender male. This brings him under “gender identity” or “gender expression” and thus under a Code-protected ground.

There is no doubt that the applicant was subjected to adverse treatment.

Then the applicant was subjected to physical assault by the three security officers and threatened with further, and potentially worse, violence if he and his male friend attended the nightclub again.

The respondent’s conduct was because of the applicant’s gender identity and gender expression.

The Tribunal found this conclusion evident from the statements made by the security officers towards the applicant combined with the physical actions of removing the applicant from the washroom cubicle and then the nightclub itself.
The Tribunal sustained that, objectively, the respondent’s conduct was egregious. The medical documentation noted several physical injuries and diagnosed the applicant with a concussion.
The Tribunal also affirmed that, subjectively, the incidents at the nightclub greatly impacted the applicant, who became worried, after the incident, about using the washroom facilities in other locations for fear that something similar would happen. Most importantly, the Tribunal noted that he became fearful to continue with his transitioning and questioned who he was.

Decision

The respondent is responsible for the conduct of its officers, officials, employees and agents.
Besides monetary compensation, the Tribunal ordered the respondent to provide human rights training to its employees, management, and staff, including security guards, officers or bouncers, specifically on the issues of gender expression, gender identity and sexual orientation.

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