Buono Osteria, a restaurant in lower Gibsons, has been ordered to pay $30,000 to a former employee for discrimination based on their gender identity and expression.
The BC Human Rights Tribunal ruled on Sept. 29 the restaurant had violated the province’s Human Rights Code, which prohibits workplace discrimination based on those “protected characteristics.”
Tribunal member Devyn Cousineau made the award as compensation to server Jessie Nelson for unjust treatment experienced during a month of employment in 2019 after which they were fired.
The tribunal’s hearing on the matter occurred in late July 2021. The 42-page reasons for decision document describes Nelson as “a non‐binary, gender fluid, transgender person who uses they/them pronouns.”
The document states that Nelson’s preferred pronouns were known to management when they began working subject to a three-month probationary period on May 27, 2019. It also says that management made efforts but did not follow up on actions to ensure Nelson was addressed as requested by the workplace team.
The tribunal found that restaurant bar manager Brian Gobelle discriminated against Nelson by persisting to refer to them with female pronouns and gendered nicknames including “sweetheart,” “sweetie,” and “honey.” It states that he also violated the Code by demonstrating hostility towards their ideas for a more inclusive workplace and “by being rude and uncooperative.”
“Use of the correct pronouns for transgender people is not optional, they are a minimum of basic respect and a legal requirement,” Adrienne Smith, Nelson’s lawyer, told Coast Reporter.
Smith, a Vancouver-based civil rights lawyer, uses they/them pronouns. They stated that the decision was the first time the tribunal has dealt with a non-binary person who uses gender-neutral pronouns asking that those be used in the workplace to demonstrate respect for their rights.
Smith said they believe the decision will have a wider reach for the restaurant industry. “Many servers are in the position that my client was in … being called nicknames in a way that can be quite unwelcome in the workplace. I’m hopeful that the case will have an impact beyond the area of ‘trans law’ and will make work a little more workable for servers and all restaurant employees,” said Smith.
The tribunal also found that restaurant co-directors Michael Buono and Ryan Kingsberry discriminated against Nelson through the delay in responding to their complaints about the bar manager’s behaviour and the firing. The decision says that “while an employer may terminate a probationary employee without cause and without notice, they cannot terminate them for any reason connected to the personal characteristics protected under the Code.”
Buono explained to the tribunal that Nelson was the first openly non‐binary person to work at the restaurant. The hearing’s record indicates that while most staff made best efforts to address Nelson properly, Gobelle resisted, despite reminders from management to do so. It states that there was “tension” in the working relationship between the two employees, which Nelson said caused them personal distress and made doing their job more difficult. It notes that the “tension” was evident to other employees and management.
Nelson made requests for assistance, according to the tribunal decision record, but management had not secured a correction to Gobelle’s behavior by June 23. After the restaurant closed that evening, Nelson and Gobelle had heated exchanges both in private and in front of Buono and other staff.
The tribunal heard testimony about Nelson touching Gobelle’s back during the incident that was witnessed by the other parties. Buono testified that in his assessment, the former server was the “obvious aggressor” in what he had seen. Considering the accounts of the two involved and the witnesses, Cousineau ruled, “I do not accept that it is fair to characterize this as a violent physical assault.”
The document says the decision to fire Nelson was made after those altercations. Kingsberry telephoned Nelson to tell them on June 27. Tribunal testimony was given that while Kingsberry had previously told Nelson that “they were a great server and that he was happy with their performance,” he said in the phone call that “part of the problem is making sure you vibe with the team” and that they were not a “good fit” for the restaurant.
In their complaint to the tribunal, Nelson said it was their understanding that they were being terminated because of their gender identity, even though Kingsberry never used those words. They filed their complaint with the tribunal on March 24, 2020.
The tribunal decision also requires the restaurant adjust staff policies and education related to human rights, diversity, equity and inclusion in the workplace within three months of the decision.
“There are lots of folks that deliver transgender inclusion training and there should be no impediment to being able to meet that part of the order. This type of training is readily available and should not have to be ordered by the tribunal,” said Smith.
Restaurant management declined to be interviewed by Coast Reporter on the matter. In an email, Buono provided a statement which was also posted to the restaurant’s social media accounts on Oct. 1.
“We accept and respect the recent decision of the BC Human Rights Tribunal that dealt with events that occurred years ago,” the statement said.
“As the tribunal decision says, our restaurant has always had an understanding of discrimination and stated commitment to creating an inclusive space for staff and customers. It also noted we took steps to support the staff involved.
“We understand that we did not do as well as we should have done. Our management will be taking steps to ensure that all staff are treated with respect, including use of their preferred pronouns, and that no staff uses derogatory comments about other staff or customers. We are committed to implementing better training for management and staff.”
The statement concluded: “We cannot change what happened in the past, but we have and will continue to make our restaurant a welcome place for everyone who works and dines with us.”
Cousineau ruled that the award of $30,000, the amount requested by Nelson, was appropriate and that as the employer, the restaurant is liable for the entire amount. The ruling states $20,000 of the total relates to actions of Kingsberry and Buono and that $10,000 was attributed to the behavior of Gobelle.
The tribunal dismissed the portion of Nelson’s claim against the restaurant’s front-of-house manager at the time, Nova Melanson. The decision says that although Melanson was aware of and did not intervene in the discriminatory behaviors, she did nothing in violation of the Code.
Smith said human rights protection for transgender people is not new, “with a suite of cases coming out in the 1990s which were really clear about respecting transgender people in the workplace.”
Acknowledging that it can feel challenging and confusing for some people meeting and working with individuals using non-binary pronouns for the first time, they remarked that “good faith efforts is all that is required… I can remember a time when the title ‘Ms.’ was considered ground-breaking and too confusing to be used in the workplace and we got over that. This is an opportunity to update our language.”