Gender identity and expression now protected in Ontario

May 05, 2013 - by: Northern Exposure 0 COMMENTS

By Alix Herber and Keri Bennett

Human Rights Tribunals across Canada are constantly expanding the interpretation of prohibited grounds. Ontario has recently joined Manitoba and the Northwest Territories and gone one step further by recognizing gender identity as a prohibited ground.

Ontario’s Bill 33, An Act to amend the Human Rights Code with respect to gender identity and gender expression, which came into force on June 19, 2012, now protects both gender identity and gender expression. Vanderputten v. Seydaco Packaging Corp. is the first decision of the Human Rights Tribunal of Ontario interpreting how gender identity and gender expression are treated in the workplace.

Facts

An employee of Seydaco Packaging Corp. was transitioning from living as a man to living as a woman. The employee also was commencing the process for sex reassignment through the Center for Addiction and Mental Health.

The employee filed a human rights application against Seydaco Packaging alleging that workplace harassment and a gender-related incident with a coworker were the reasons why she was fired.

At the hearing, the evidence showed that the employee had received considerable discipline in the past for incidents relating to displays of anger in the workplace and interpersonal conflict with coworkers. But the employee wasn’t solely at fault. She said she was subject to verbal and physical harassment from her coworkers in the form of swearing, name calling, and pushing.

Further, Seydaco Packaging required the employee to use the men’s change room at work until it “received sufficient medical evidence that the [employee] was now a woman.” The employee asked to change her shift times so that she could avoid changing with the men, but Seydaco Packaging denied her request.

The employee also said that on the day she was fired, her manager called her derogatory names based on gender. The manager asserted that the employee was displaying aggression and “throwing skids around.” In response, Seydaco Packaging fired her for insubordination.

Decision

The vice chair of the Human Rights Tribunal of Ontario decided that the employee had been subject to discrimination under the Ontario Human Rights Code and that the following factors created a poisoned work environment for the employee:

(a) Harassing comments about the employee’s gender identity;

(b) The employer’s insistence that she be treated as a man in all respects until her surgery was complete; and

(c) The employer’s failure to investigate or provide a reasonable response to her allegations that she was being harassed because of her sex and gender identity.

The vice chair made the following important comments:

“Insisting that the [employee] be treated in the same manner as men until her transition was fully complete was discrimination. It failed to take into account the [employee’s] needs and identity. The insistence that a person be treated in accordance with the gender assigned at birth for all employment purposes is discrimination because it fails to treat that person in accordance with their lived and felt gender identity.”

The vice chair awarded the employee eight months’ pay in lieu of notice (based on her total seven years’ service, with a brief gap) and $22,000 in general damages. Although the employer was responsible for $21,000 of the general damages, the manager was responsible for $1,000 of those damages.

Takeaway for employers

By awarding $22,000 in general damages, the Human Rights Tribunal of Ontario has sent a message about how severe this situation was. As a result of this award, Canadian employers cannot afford to ignore issues of gender identity and gender expression, even in provinces in which such grounds are not specifically enumerated in human rights legislation. Indeed, there is legislation working its way through Parliament to amend the federal Human Rights Act to include gender identity as a prohibited ground. The chances that other provinces will follow suit is high.

Not ignoring these issues is no easy task, particularly since the issues of gender identity and gender expression and how they affect the workplace remain little understood. Canadian employers would be advised to educate themselves and their staff when faced with these situations. Employers will want to prevent incidents of harassment and a poisoned work environment from developing.

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