Employers should be taking steps now if they haven’t already to avoid claims of discrimination on the basis of gender identity and expression in the workplace, according to a panel of experts.
In 2012 the Ontario legislature introduced gender identity and gender expression as protected grounds under the Human Rights Code. Since then, employers have been asking what is required for workplace accommodation and what best practices they should adopt to ensure compliance.
At an Ontario Bar Association event held last night in Toronto, a panel of lawyers, the chief commissioner of the Ontario Human Rights Commission, and policy experts discussed what some employers are doing to address the issue.
“Employers shouldn’t have a knee-jerk reaction to accommodation of expression or identity. They should consult internally and have thoughtful reflection on what can be done and develop a gender policy to have in place before any issues arise,” said Ryan Edmonds, a labour and employment lawyer with Heenan Blaikie LLP who spoke on the panel.
Similar amendments have been enacted in Manitoba, Nova Scotia, and the Northwest Territories. Last week, Newfoundland also committed to toughen the language in its Human Rights Act to ban discrimination based on gender identify and expression.
“A lot is happening across the country, but I’m not sure it will happen at the federal level,” said Barbara Hall, chief commissioner of Human Rights Commission of Ontario.
Federally, bill C-279 has yet to be passed. As a result, people have to rely on the implicit protections of sex under the Canadian Human Rights Act by the Canadian Human Rights Tribunal.
Hall said there needs to be more education on the issue for both employers and transgendered people.
“For many, there is very little knowledge of this issue,” she said.
Cheri DiNovo, MPP for Parkdale-High Park, said transgender people say they can’t get access to homeless shelters.
“Enacting rights and having them are two different things,” she said. “On the street, it’s amazingly enough not a huge issue and sadly enough not a huge issue.”
Having a gender transition policy in place that is clearly communicated to a workforce “sends a strong message” to employees who may be transgender but closeted, said Edmonds. Such a policy can foster discussion about the options available to transitioning employees and the hardships faced by transgendered people in general.
The policy should also include sensitivity training on issues related to gender identity in the workplace.
“It’s important to have a policy in place and a transition policy available so people can feel they can apply for a job and they will be welcome and protected,” said Nicole Nussbaum, a lawyer with Legal Aid Ontario.
Nussbaum noted it’s her hope that one day the language will move from an “accommodation” model for transgendered people to one of “integration.”
Some ways employers can avoid unnecessary conflict and potential discrimination on the basis of gender include reassessing the need for gender-based distinctions in the workplace.
Employers could also consider adding an “other” option when gender information is requested of employees as some transgendered people do not identify with any particular gender.
Washroom usage should also be addressed. Some employers have provided transgendered employees with a private washroom, but this may no longer be appropriate. The Toronto District School Board’s policy on washroom access states that, “where possible,” schools will provide all-gender, single stall washrooms for use by any employee regardless of the reason. However it should be a matter of choice for an employee.
The Law Society of Upper Canada’s model policy for law firms on inclusion for lesbians, gays, and transgendered people states: “The firm respects the needs of those who identify as transgender regarding the use of washrooms and gender-specific facilities. It is that person’s right to use a washroom that is in accordance with their gender identity and presentation.”
Dress code is another area Edmonds says employers should address from a policy perspective by making them more gender-neutral. In particular, employers should avoid dress codes that prescribe gender stereotypes, such as requiring men to wear ties and women to wear skirts. Telling employees to dress “professionally” makes a policy gender-neutral.
Some dress codes have been struck down by arbitrators in unionized workplaces on the basis of sex stereotyping. Edmonds says it is likely a similar result could occur in the human rights context under the new ground of gender expression.
