Rights bodies back ERT’s dismissal of transgender case

An organisation that represents the interests of the LGBTQ community and other vulnerable minority groups has backed the decision of the Employment Rights Tribunal (ERT) to throw out a claim of unfair dismissal by a transgender woman.

The ERT on Monday dismissed the unfair dismissal claim, exposing significant gaps in Barbadian law regarding gender identity protections in the workplace.

Alexa Hoffman, a former clerical officer at Court Caribbean Law Practice, had her case thrown out after the tribunal ruled she had “no standing to bring a complaint for unfair dismissal based on gender discrimination, since ‘transgender’ is not a status which is recognised under the laws of Barbados,” according to Kathy-Ann Hamblin, SC, deputy chair of the ERT panel.

The case has sparked discussions about the need for legislative changes to address gender identity in the workplace, with Hamblin urging Parliament to consider amending the law “to reflect an evolving Barbadian society, a changing world view, and to meet the State’s international obligations”.

Hoffman contended that the firm terminated her contract without notice on October 26, 2018 alleging the dismissal was based on gender discrimination. However, the tribunal found that neither Hoffman nor any representative group had made a written complaint of unfair dismissal to the chief labour officer within the statutory limitation period.

Hamblin suggested that “a more viable option would have been a claim of constructive dismissal”, as Hoffman was “not given a reason and sent home without being paid”. She criticised the law firm’s decision to send Hoffman home without reference to the Fourth Schedule of the Employment Rights Act, which outlines disciplinary procedures.

The case has received support from both LGBTQ advocates and trade unionists. Luke Lascaris, chairman of Equals Inc, told Barbados TODAY: “It was unfortunate that Alexa pursued an unfair dismissal when she should have pursued a constructive dismissal. The view of what the Employment Rights Tribunal said was correct in its criticism of the protections that exist for people under the law, especially regards to transgender people where they aren’t covered.”

Dennis DePeiza, general secretary of the Congress of Trade Unions and Staff Associations of Barbados (CTUSAB), agreed that the ERT’s decision was not at fault, stating that “the decision reached was grounded on the observance of the procedures, the process, and the dictates of the law”.

The tribunal heard that Hoffman had applied for the position using the name Alexa Hoffman and attended an interview presenting as such. Her transgender status was not disclosed until approximately two weeks into her employment. Nigel Bennett, the firm’s managing partner, had asked Hoffman to use her legal name at work, citing the nature of the job and the name on her identification documents.

Hamblin ruled: “The Laws of Barbados make absolutely no provision for the claimant to insist on being, or request to be addressed by a feminine pronoun. Similarly, no one, employer included, given the current state of the law, can be compelled to refer to the claimant by a feminine pronoun if they choose not to.”

The ERT deputy chair added that in the absence of a legislative framework, transgender individuals are entitled “to freedom of choice in their private life, and to basic human dignity”.

The case has highlighted the need for clearer legal protections for transgender individuals and may prompt discussions about potential legislative changes. ERT Deputy Chair Hamblin called for “meaningful dialogue with the people of Barbados” to determine if and how the law should be amended to address these issues.

The ruling has also underscored broader issues regarding workplace protections and employer conduct. Hamblin emphasised that employers cannot arbitrarily dismiss workers without following proper procedures, stating: “Section 27 (1) of the [Employment Rights] Act was triggered immediately [after] the respondent made a unilateral decision to force the claimant to go on leave without notice and without being notified of the reasons for that action, without a hearing, a right of appeal and without pay.”

Hoffman had formally applied for the clerical position under the name Alexa Hoffman and attended an interview with Bennett, identifying as such. But Hamblin noted that due to a “miscommunication”, no information relating to the claimant’s gender or legal identity was disclosed to the respondent before Hoffman was hired.

Approximately two weeks into her employment, Hoffman “had to reveal my status as a transgender woman” when Bennett asked questions about the origin of her surname. Upon this revelation, Bennett reportedly told Hoffman that this should have been disclosed earlier and requested that she use her legal name at work, given the nature of the job and the name on her identification documents.

The tribunal heard that Hoffman’s subsequent “immediate demand” to be referred to as “she” upon legally changing her name led to the employer seeking clarification on its legal position, as Bennett “vehemently protested that the request was inconsistent with the law”.

Lascaris of Equals Inc praised the tribunal for taking the time to explain where there are gaps in the laws relating to transgender people and other vulnerable minority groups. He said: “I think that decision of the Employment Rights Tribunal was fair, and they took a lot of time to make sure to explain their decision and to highlight the way that the law was needed to be updated and brought into modern times, for a modern society that has just become a republic, and to make sure that everybody is covered under the law.”

CTUSAB’s DePeiza advised that “claimants have a responsibility to ensure that the application to the ERT is in accordance with the guidelines, rules and procedures”. He also argued that the tribunal must be guided by existing laws, the Constitution of Barbados, and most importantly, the facts of each case.

emmanueljoseph@barbadostoday.bb