A former B.C. restaurant employee has been awarded $30,000 for being unfairly terminated after asking managers and co-workers to refer to them by their pronouns “they” and “them.”
The decision by the BC Human Rights Tribunal’s Devyn Cousineau, published last week, found Jessie Nelson, a non-binary, gender fluid, transgender person who worked as a server at the Buono Osteria restaurant in Gibsons on the Sunshine Coast, was fired for “how they responded to discrimination.”
Michael Buono and Ryan Kingsberry own the restaurant where Nelson worked for four weeks starting in May 2019.
During that time, Nelson repeatedly had to deal with discriminatory behaviour, particularly from bar manager Brian Gobelle, the decision said.
Gobelle persistently referred to Nelson with she/her pronouns and with nicknames like “sweetheart,” “honey,” and “pinky.” Nelson asked Gobelle to stop, and he did not.
“They asked management to intervene and were told to wait. On their final day of work, Nelson again tried to speak to Gobelle about this issue and the discussion grew heated,” Cousineau wrote.
At least three times during their final conversation, Gobelle referred to Nelson with the aforementioned gendered nicknames and they, in turn, told him: “My name is not pinky or sweetie. If you can’t use my pronouns, at least use my name.”
Gobelle, according to the decision, responded by saying that he was not going to change who he was.
The conversation continued to escalate and at some point, Nelson touched Gobelle’s shoulder and called him “sweetheart.” They brushed by him on the way out.
Despite concerns that there was some force used in that interaction, the tribunal found it wasn’t physical assault.
“Four days later, (Nelson was) fired. Pressed to explain the termination, Kingsberry told Nelson that they had simply come on “too strong too fast and were too ‘militant.’”
Nelson alleged that Gobelle’s conduct towards them, and the employer’s response, amounts to discrimination in employment based on their gender identity and expression. and the tribunal agreed.
”It is apparent that Jessie Nelson was terminated in connection with their efforts to address discrimination,” Cousineau wrote.
“There is no dispute that their conflict with Mr. Gobelle was based, in part, on his ongoing use of female pronouns and nicknames, and that Jessie Nelson objected to that conduct because it harmed them in connection with their gender identity. The conflict was also related to Jessie Nelson’s feedback at the staff meeting and elsewhere about how people could change their behaviour to be more inclusive towards trans guests – feedback which they overtly connected to their own personal experience.”
Buono said this was Gobelle’s main problem with Nelson. He said he felt that it was his right to refer to guests as “guys” or “gals,” and that it was not Nelson’s place to “police” his language.
Language, however, is relevant, and Cousineau said human rights law has to do with impacts, not intentions.
“Like a name, pronouns are a fundamental part of a person’s identity. They are a primary way that people identify each other. Using correct pronouns communicates that we see and respect a person for who they are. Especially for trans, non-binary, or other non-cisgender people, using the correct pronouns validates and affirms they are a person equally deserving of respect and dignity,” Cousineau wrote.
“As Jessie Nelson explained in this hearing, their pronouns are ‘fundamental to me feeling like I exist’. When people use the right pronouns, they can feel safe and enjoy the moment. When people do not use the right pronouns, that safety is undermined and they are forced to repeat to the world: I exist.”
In addition to the $30,000 plus interest owed, Buono Osteria has been ordered to implement mandatory training for all staff and managers about human rights in the workplace of at least two hours, and to include a statement in its employee policies that affirms every employee’s right to be addressed with their correct pronouns.
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