Canadian Employment Law Today

September 8, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2021 Key Media Canada (HR) Ltd., a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under licence by Key Media Canada (HR) Ltd. CANADIAN EMPLOYMENT LAW TODAY is a trademark of Key Media Canada (HR) Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 79990 3547 RC-0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You Make the Call fea- tures a human rights complaint between an Ontario restaurant and three former LGBTQ employees. Gallagher's Bar and Lounge was a bar and restaurant in Hamilton, Ont. In October 2017, it hired EN as the kitchen manager. EN super - vised four kitchen staff, including JR and FH, two casual part-time kitchen workers who were hired in April 2018. EN identified as gender queer and all four staff that they supervised identified as gender queer or non-binary trans. They all used they/ them pronouns and EN asked the owner to re - fer to them all with those pronouns. On June 10, 2018, another Gallagher's em- ployee came into the restaurant looking vis- ibly upset. The co-worker told JR and FH that they had heard the owner make inappropriate comments about gender identity. Eleven days later, on June 21, an employee told EN about the comments, specifically mentioning that the owner had been socializing with custom - ers over drinks and had said, "Guess what? I have four trannies in my kitchen!" EN, JR, and FH all felt unsafe at work be- cause of the comments, as they didn't know who the owner was speaking to at the time, how the comments were received, or who in the restaurant may have overheard. EN asked to speak with the owner and met with him the next day along with FH. They told him about the complaint about his "trannies" remark and asked him to make it right. The owner denied using the term and said he had told customers that he had four staff who were "LGBT." He also commented that he had been "walking on eggshells" around them by trying to use the proper pronouns to address them. EN and FH were shocked and didn't believe the owner. They felt he didn't take them seri - ously and his "eggshells" comment meant that he believed they were too sensitive. EN was too upset to work and left the restaurant. On June 23, the day following the meeting, the owner asked EN if they were quitting. EN said that they weren't yet prepared to return to work and they were disappointed that the owner wasn't holding himself accountable or addressing the complaint. However, they weren't ready to quit and said they planned to return for their next scheduled shift. The owner again denied any wrongdoing and said that he would hate to lose EN but "if I can't convince you that I didn't say it I'm wasting my time." He emphasized the importance of trust in the employment relationship, which EN under - stood to mean that the owner would consider their relationship irreparably damaged unless EN dropped the complaint. EN worked their next scheduled shift but continued to feel unsafe and unwelcome at work. JR and FH continued to work at Galla - gher's for a couple of more weeks and on July 7 provided written notice of their concerns through their lawyer. The owner didn't re- spond to the letter, so both JR and FH told the owner on July 13 that they wouldn't be return- ing to their job. EN also resigned from their position as they didn't want to be complicit with the owner's refusal to respect the rights of employees under their supervision. The three workers filed a hu - man rights complaint alleging discrimination in employment. YOU MAKE THE CALL Were the three workers forced out of their jobs due to discrimination? OR Was there no discrimination and the workers quit their jobs? IF YOU SAID the workers were forced out of their jobs due to discrimination, you're right. The Ontario Human Rights Tribunal found that gender queer and non-binary trans people "are a historically disadvan - taged group protected from discrimination" by the province's Human Rights Code. The use of a transphobic slur to describe the three workers in a public setting to customers in the restaurant effectively "outed" the work - ers "in a derogatory and non-consensual way" that caused them to fear for their safety, said the tribunal. The tribunal found that when EN and FH brought their concerns to the owner on June 22 and when JR and FH submitted the letter from their lawyer, he didn't meaningfully re - spond in any way or address their concerns. In- stead, he was dismissive and implied that they were being too sensitive, which was a failure of his obligation to investigate a workplace dis- crimination complaint, the tribunal said. "I also accept the applicant's uncontested evidence that they ultimately felt they had no choice but to leave the workplace as a result of the [owner's] dismissive attitude and failure to adequately, or at all, respond to their concerns about this incident," said the tribunal. "[Their] loss of employment is another form of adverse impact." The tribunal added that the owner's failure to use the correct pronouns when referring to the three workers, in the face of express re - quests, was also an adverse impact. Gallagher's and its owner were jointly and severally ordered to pay all three employees damages for lost wages from when they left their employment to when the restaurant per - manently closed on Nov. 10, 2018 — in EN's case, to when they became a full-time universi- ty student in September 2018 — plus $10,000 to each for injury to dignity, feelings, and self- respect they suffered because of the discrimi- nation. For more information, see: • EN v. Gallagher's Bar and Lounge, 2021 HRTO 240 (Ont. Human Rights Trib.). Restaurant owner cooks up trouble with LGBTQ workers

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