Pronouns, Washrooms and Dress Codes, Oh My! Gender Identity and Expression – WHAT EMPLOYERS SHOULD KNOW – Part 1 of 2

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There has been a growing acknowledgement of the difficulties faced by transgendered people, especially in the workplace, where they frequently experience harassment and discrimination because of their chosen identity. Recent legislative changes with respect to gender identity and expression have dominated the headlines and may have many employers wondering how these changes will apply to them.. These legislative changes are intended to prevent discrimination by prohibiting employers across Canada from discriminating on the basis of gender identity in the hiring, training, promoting or firing of transgender employees. In light of these changes employers should conduct a thorough review of a broad range of issues to ensure their workplaces are inclusive and respectful environments free from discrimination.

This Part I will review the recent legislative changes and how they will affect employers in Canada. Part II will provide suggestions of what employers should do to ensure compliance and to foster inclusive work environments.

History of Changes

In June 2012, the Ontario legislature passed Bill 33 adding gender identity and gender expression as prohibited grounds of discrimination under the Ontario Human Rights Code. In April, 2014, the Ontario Human Rights Commission (“OHRC”)  released an updated version of its “Policy on Preventing Discrimination on the Grounds of Gender Identity and Gender Expression” (the “Policy”) that provided definitions for gender identity and gender expression. On May 17, 2016 the Federal government introduced Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code. The bill proposes an amendment to the Canadian Human Rights Act by adding the words “gender identity or expression” to the list of prohibited grounds of discrimination. Bill C-16 also proposes to amend the Criminal Code so as to make it a criminal offence to spread hate propaganda based on gender identity or expression. Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, amended the Ontario Occupational Health and Safety Act (“OHSA”) to create new obligations for employers. These reforms changed the definition of “workplace harassment” to include “sexual harassment,” which is defined to include a “vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome.”    

What Constitutes Discrimination/Harassment?

These changes collectively mean that people are protected from both discrimination and harassment because of gender identity and gender expression in employment, housing, facilities and services, contracts, and membership in unions, trades or professional associations. The OHRC says that discrimination occurs when a person experiences negative treatment or impact, intentional or not, because of their gender identity or gender expression. It can be direct and obvious or subtle and hidden. It can also happen on a bigger systemic level such as organizational policies that look neutral but have the effect of excluding trans people. Legislation also protects the friends, family and others who face discrimination because of their association with a trans person. Harassment is a form of discrimination and can include inappropriate comments, questions, jokes, name-calling, images, email and social media, transphobic, homophobic or other bullying, sexual advances, touching and other unwelcome and ongoing behaviour that insults, demeans, harms or threatens a person in some way.

Human Rights Policy

The Policy provides guidance to employers who are unsure about the scope of the terms gender identity and expression. The Policy defines gender identity as each person’s internal and individual experience of gender. It is their sense of being a woman, a man, both, neither, or anywhere along the gender spectrum. Sex is an anatomical classification assigned at birth and is not necessarily a permanent characteristic. Gender identity may differ from a person’s sex. Gender expression is defined as how a person presents their gender. This can include behaviour and outward appearance such as dress, hair, make-up, body language and voice. A person’s chosen name and pronoun are also common ways of expressing gender.

Human Rights Complaints

The amendments to human rights legislation allow individuals to file complaints asserting that they have been discriminated against in their employment based on these grounds. Employers may be liable for any discrimination and harassment that happens. They are also liable for not accommodating a trans person’s needs unless it would cause undue hardship. Employers must deal with complaints, take steps to prevent problems and provide a safe, welcoming environment for trans people.

Employers should learn about the needs of trans people, look for barriers, develop or change policies and procedures and conduct training to educate employees. This will help make sure trans people and other gender non-conforming individuals are treated with dignity and respect and enjoy equal rights and freedom from discrimination.

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Prepared with the assistance of Braden Skippen, Student-at-Law

Christina J. Wallis is a Partner lawyer practising civil litigation with a focus in Employment Law at Dale & Lessmann LLP, Toronto, Ontario, Canada, a full service business law firm. To speak to Christina please call 416-369-7832 or send an email message to her at mailto:cwallis@dalelessmann.com.