In Vanderputten v. Seydaco Packaging Corp. and Gerry Sanvido, the Ontario Human Rights Tribunal found that a packaging company and management employee discriminated against a transgendered worker on the basis of sex and gender identity in the course of her transition from man to woman. The case provides some helpful practical advice for employers to work with transgendered and transitioning employees in the workplace. The case is particularly relevant to Nova Scotia employers given the 2012 amendments to the Human Rights Act that provide protection from discrimination on the basis of gender identify and gender expression. Nova Scotia, the Northwest Territories, Ontario and Manitoba all explicitly protect discrimination on this ground and it is anticipated other provinces will follow.
The Complainant was hired in 2003 as Tony Vanderputten, a shrink wrapper at Seydaco Packaging Corp. (“Seydaco”), a manufacturer of folding cartons and boxes used for pre-packaged foods (i.e., pies and cakes) usually sold in grocery stores. When hired, the Complainant was living as a man and was a good employee, although prone to interpersonal conflicts including frequent racial remarks. In 2006, the Complainant was terminated, but was later re-hired a few months later by a different manager.
By 2008, the Complainant was living as a female and was accepted to a gender identity clinic in Toronto. After hormone treatment the Complainant qualified for genital reconstruction surgery. The Complainant then began arriving at work dressed as a woman and wearing make-up. Once at work, the Complainant would change into the gender-neutral jumpsuit employees were required to wear on the floor.
In 2010, while still in the process of transitioning, the Complainant was dismissed after an altercation with a co-worker. The Complainant’s actions included:
- offering to show a male co-worker the bra she was wearing;
- asking another male co-worker whether her breasts were getting bigger; and
- asking a summer student about her menstrual cycles and soreness in her breasts.
The Complainant filed a human rights complaint.
What did the Tribunal do?
Despite evidence that the Complainant was frequently angry, failed to follow directions, and raised inappropriate questions with co-workers, Adjudicator David Wright found that the Complainant had been subjected to ongoing harassment and discriminatory comments from co-workers. Seydaco was found to have condoned a poisoned work environment and committed a number of accommodation flaws during the Complainant’s transition. Although the Tribunal said the Complainant was not a model employee, it recognized that all employees are entitled to a harassment-free workplace. The Complainant was awarded $22,000 in general damages (for loss of dignity and hurt feelings) and eight months’ wages (despite the break in service).
What was key?
Key factors contributing to the Tribunal’s findings were that the employer:
- failed to adequately respond to the Complainant being called various derogatory names and to derogatory drawings on bulletin boards throughout the plant;
- despite knowledge of the Complainant’s transition, required the Complainant to use the men’s change room;
- insisted that the Complainant be treated as a man until her surgery was completed;
- failed to consider any options that would allow the Complainant to have privacy while changing, despite knowing she was having problems in the workplace; and
- Inadequately investigating the harassment complaint and blaming the Complainant for being the source of conflict.
What does this mean for employers?
Employers cannot insist that transgendered and transitioning employees be treated exactly the same as others. The issues involved in transitioning are complex, especially in terms of social conceptions of privacy, identity, public decency and sexuality.
Employers should consider any options that allow the transgendered and transitioning employees to have washroom/locker room privacy while changing. Allegations of harassment or workplace bullying should be promptly and carefully investigated and employers should always engage in ongoing dialogue with the transitioning employee to ensure that the transition is properly accommodated.