The Human Rights Code (the “Code”) of Manitoba prohibits discrimination in employment and services on the basis of various protected characteristics, including age, disability, religion and sex.
Recently, the provincial government introduced Bill 43, The Human Rights Code Amendment Act, which proposes to amend the Code to include “gender expression” as a protected characteristic.
“Gender expression” is not defined in the Code or Bill 43. However, the Manitoba Human Rights Commission (the “Commission”) has stated that gender expression is the way a person presents and communicates gender. Gender can be expressed through clothing, speech, body language, hairstyle or voice, amongst other ways. The Commission has further stated that gender can be expressed by emphasizing or de-emphasizing bodily characteristics or behaviours that are associated with masculinity and femininity.
Bill 43 has passed through the Committee Stage and if passed, employers will be required to use an employee’s preferred pronouns. Further, employers will need to take reasonable steps to ensure that their employees use the preferred pronouns of their co-workers and customers or risk a human rights complaint.
During the public hearing for Bill 43, the Executive Director of the Commission stated that honest mistakes about gender pronouns are unlikely to lead to any trouble. However, the intentional misgendering of individuals could have big consequences, not only for employers but also for the individuals who are intentionally misgendering. Pursuant to the Code, individual employees who engage in discriminatory behaviour could be found to have violated the Code and be liable for penalties, in addition to their employers who could be found to be vicariously liable.
In 2024, the Canadian Human Rights Tribunal found that misgendering and deadnaming (the act of referring to an individual by the name assigned to them at birth, rather than by their chosen name) an employee who specifically and repeatedly asked to have their gender identity and expression respected was a discriminatory practice that was contrary to the Canadian Human Rights Act. In this case, the complainant was a transgender man who used masculine pronouns and a name that was different than the name he was assigned at birth (i.e. his deadname). Throughout his employment, the company’s owner and another employee repeatedly referred to the complainant by his deadname and misgendered him by using feminine pronouns. The Tribunal found that the conduct constituted discriminatory harassment on the basis of the complainant’s gender identity and expression and awarded the complainant $18,000, $3,000 of which was owed by the individual employee.
In Manitoba, if an adjudicator finds that discrimination has occurred, the adjudicator may order the party to do one or more of the following:
- Do or refrain from doing anything to ensure it will not contravene the Code in the future, which may include immediately ceasing the discriminatory practice or behaviour, reviewing or changing the discriminatory policy or practice or taking human rights training
- Compensate the complainant for any lost wages, income or benefits resulting from the discrimination in an amount deemed to be appropriate
- Compensate the complainant for injury to their dignity, self-respect and feelings as a result of the discrimination up to a maximum of $25,000
- Pay a penalty or exemplary damages for malice or recklessness, in an amount that is deemed appropriate
- Implement an affirmative action or special program, where appropriate
Conclusion
In the course of their duties and responsibilities, pharmacists come across various individuals every day, whether that be fellow employees or the customers they serve. Employees should be aware of their duties pursuant to the Code and consider whether their behaviours or actions may violate such individuals’ human rights. Consequences for breach of an individual’s human rights could include a monetary penalty.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
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