Workplace warning as Aussie fired for using wrong pronouns: ‘Far more common'
The 63-year-old man brought his case to the Fair Work Commission claiming wrongful dismissal. However, the West Australian reports the worker reached a confidential settlement with his former employer after he was told he would risk social backlash if he pursued the matter in open court.
McCabes Lawyers principal Tim McDonald told Yahoo Finance refusing to use someone's preferred pronouns could give rise to a gender identity discrimination claim or be considered inappropriate workplace behaviour, depending on the circumstances.
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'Under the Sex Discrimination Act, there's protections against discrimination of people because of their gender identity and then employers aren't allowed to discriminate against people under the Fair Work Act because of their gender identity,' he said.
McDonald said employers had to uphold their obligations under the Sex Discrimination Act in terms of enforcing appropriate workplace behaviour.
That means if they became aware of complaints about someone being discriminated against because of their gender identity, they would be expected to 'take some action'.In the Perth worker's case, the man reportedly introduced his younger co-worker as 'he' instead of 'they' to a room of people at a leadership training course in February.
Another staff member corrected him and the man apologised to the worker, who had previously told the man they wanted to be referred to as 'they' and had this pronoun on their name badge.
The workers reportedly continued the training day in a cordial manner. The older worker was later told by his manager that a formal complaint had been lodged and a written apology was required.
The worker refused and claimed nobody could be compelled to call a colleague 'they'.
He reportedly later told a Fair Work hearing that if one person had the arbitrary right to use a particular pronoun, then another person had the right not to use it.
His employer launched an investigation in March and the worker was dismissed.
The matter has been kept under wraps because the conciliation conference was confidential.
What is gender identity discrimination?
Gender identity discrimination is when someone treats you unfairly, including bullying you, due to your gender identity.
According to the Victorian Equal Opportunity & Human Rights Commission, refusing to use someone's preferred pronouns is an example of gender identity discrimination. While genuine mistakes aren't against the law, it may be discrimination if it is done in a hostile manner.
The Commission said 16 per cent of complaints about gender identity discrimination it received were work-related.
McDonald said the fact the Perth employee did not want to apologise may be the reason it escalated to the extent that it did.
'It may not have been harsh in those circumstances because the person wouldn't recant," he said.
"But in other circumstances where the person just apologised and said it was an oversight, you'd wonder whether it would be something you could resolve."
Disputes expected to become more common
The Perth worker's case is thought to be new legal territory, but McDonald thinks we will see more workplace disputes related to gender identity discrimination in the future.
'Part of the reason being that in the community it is a far more common thing for people to be non-binary,' he said.
The Australian Bureau of Statistics estimates 0.9 per cent of Australians aged 16 years and over are transgender and gender diverse, including non-binary people.
'It's going to be a more evident situation in the workplace and it's going to be more of a consideration,' McDonald said.
McDonald noted some workplaces now provided uniforms that could be worn by any gender, and options were not binary like the way they previously were.
'Once you get changes in society, they naturally spill over into workplaces and we've got to accommodate them. Practical things like toilets, for example, and uniforms are all things that people have to address,' he said.
'Most workplaces these days want to champion diversity and be inclusive workplaces. If you want to be like that and attract the best people, irrespective of what their gender identity or preferences are, then I suppose you need to put in place accommodations that will support that.'
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