This is the second of a series of blog posts related to the topic of accommodation in the workplace. The first blog post related to an employer’s duty to accommodate breastfeeding in the workplace. Click here to review a copy of that blog post.

This blog post focuses on an employer’s duty to maintain a workplace that is free from discrimination and harassment based on gender identity and expression. This duty extends throughout the various stages of employment, including hiring, retention, payment and benefits, training and promotion, performance management and termination.

What is Gender Identity and Expression?

Gender identity has been defined by the Ontario Human Rights Commission as each person’s internal and individual experience of gender. It is their sense of being a man, woman, both, neither, or anywhere along the gender spectrum. A person’s gender identity may be the same as or different from their birth-assigned sex. Gender identity is fundamentally different from a person’s sexual orientation.[1]

Gender expression refers to how a person publicly presents his/her gender. This can include outward behavior 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.

Issues related to gender identity and expression are often associated with the term “trans” or “transgender,” which is an umbrella term to refer to people with diverse gender identities and expressions that differ from stereotypical gender norms. This includes, but is not limited to, people who identify as transgender, trans woman (male to female), trans man (female-to-man), transsexual, cross-dresser, gender non-conforming, gender variant or gender queer.

GENDER-BASED DISCRIMINATION:

Gender-based discrimination involves more than just instances of harassment. It can include systemic barriers that result from embedded behaviour patterns, policies, and practices within an organization that may appear neutral but have an adverse or negative impact on trans people by creating or reinforcing disadvantages, limiting rights, and narrowing opportunities in the employment context and elsewhere.

THE DUTIES OF EMPLOYERS:

Employers must take steps to prevent or respond to potential or actual violations of discrimination against trans employees, regardless of whether an official complaint has been made. Employers that remain unaware, ignore, or fail to address the various forms of gender-based discrimination and harassment can be found directly liable and face monetary penalties or other sanctions by a court or tribunal.

Organizations should develop and implement policies and procedures that address the specific needs of trans people. Some best practices include:

  • Self-Identification: Employees have the right to define their own gender identity and be referred to their self-identified name and preferred personal pronoun. This applies regardless of whether they have undergone surgery or possess recently updated identity documents.
  • Prevention of Harassment: Gender-based harassment is a form of discrimination. The Ontario Human Rights Commission has provided some guidance on the forms that gender-based harassment can take:
    • Derogatory language toward trans people or communities
    • Insults, comments that ridicule, humiliate or demean people because of their gender identity or express
    • Behaviour that “polices or reinforces traditional heterosexual norms”
    • Refusing to refer to a person by their self-identified name and proper personal pronoun
    • Comments or conduct relating to a perception that a person is not conforming with gender-role stereotypes
    • Jokes related to a person’s gender identity or expression including those circulated in writing, email, or social media
    • Spreading rumours about a person’s gender identity or expression including through the Internet
    • “outing” or threatening to “out” someone as trans
    • Intrusive comments, questions or insults about a person’s body, physical characteristics, gender-related medical procedures, clothing, mannerisms, or other forms of gender expression, and
    • Other threats, unwelcome touching, violence and physical assault

Tribunals have found that work environments are also a condition of employment like wages or work hours and includes the emotional or psychological circumstances of the workplace. Regardless of the number of times that it happens, a poisoned environment can occur where the nature of comments or conduct throughout the workplace negatively impacts the terms and conditions of employment for trans people.

  • Privacy and Confidentiality: Organizations should not collect or use personal information identifying a person’s gender without a valid reason. For example, Employer should be wary of workplace forms, such as application forms or benefit forms, that require an employee to select a particular gender. In addition, keeping information about a person’s trans identity confidential is critical.
  • Washrooms and Change Facilities: Employees should have access to washrooms or other change facilities according to their lived gender identity.
  • Dress Codes: Dress codes should be inclusive and flexible and not prevent trans people from being able to dress in their expressed gender.
  • Transitioning: Trans people are particularly vulnerable when transitioning publically to their gender identity. In addition to being exposed to certain risks of harassment, organizations should adopt discreet procedures to accommodate trans people while transitioning, such as time away to support medical procedures or access to single-user private washrooms.

In addition to the specific steps mentioned above, organizations can take more general steps to ensure that they are following human rights principles with respect to gender identity and expression by ensuring the development of the following policies and procedures:

  • A barrier prevention, review and removal plan
  • Anti-harassment and anti-discrimination policies
  • An accommodation policy and procedure
  • An internal complaints procedure, and
  • An education training program that focuses on the stereotypes and discrimination faced by trans people