In a recent decision, the Human Rights Tribunal of Ontario affirmed the rights of trans workers to be treated with respect in the workplace. Sarah Molyneaux represented 3 workers who quit their jobs after their employer repeatedly misgendered them by failing to use correct pronouns, outed them as trans and used a transphobic slur in the workplace.
This decision affirms what trans and genderqueer or gender non-conforming workers and employment lawyers have been saying for years: pronouns are a legal issue. While the employer in this case asserted that his genderqueer trans employees were forcing him to “walk on eggshells”, the decision isn’t about a single accidental incident. Rather, it deals with the consequences of an employer repeatedly failing to use correct pronouns despite clear requests by his employees.
Non-consensual outing is dangerous
The same decision reminds us not only that using transphobic slurs is discrimination, but that it can amount to non-consensual outing. Outing an employee as trans can expose them to violence, discrimination and harassment by co-workers or the public. This is private employee information that should not be shared without consent.
Human Rights Tribunal offers protections to trans, gender non-conforming applicants
One reason why this case is important is that only a small number of decisions at the Human Rights Tribunal address trans rights or the rights of gender non-conforming people. This is not because trans or gender non-conforming people don’t experience discrimination. In fact, as the decision itself confirms, this group of workers is at high risk of workplace discrimination and harassment. However, in MMH’s experience, victims of workplace transphobia are often reluctant to come forward for a variety of reasons. One reason is the concern that a public decision may lead to further discrimination in future workplaces.
Employees considering approaching a lawyer about transphobia in their workplace may be comforted by the steps taken by the human rights tribunal in this case. In most cases, the Tribunal or Court considers it important for all parties to be named on a public decision and for the press, lawyers, and others to be able to access information about the case, including about the parties. This is part of the “open court principle”. However, in this decision, the Tribunal agreed to anonymize the applicants’ names for their protection. In granting the applicants’ request for anonymization, the Tribunal specifically considered that part of their case dealt with non-consensual outing. In other words, it wouldn’t make sense to decide that the applicants were discriminated against by non-consensual outing only to require them to out themselves in public records in order to get justice. This order protected both the applicants’ legal names and their social names, which they used in their day-to-day.
Workplace transphobia has serious consequences
Ultimately, the Tribunal ordered the employer to compensate the applicants for lost wages and to pay each of the applicants $10,000 in general damages. General damages are also called “human rights damages” and are meant to compensate for “injury to dignity, feelings and self-respect”.
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