Human rights legislation protects a wide range of individuals in
Canada. It prohibits harassment and discrimination in employment on
obvious grounds such as age, ethnic origin, gender and disability.
It also prohibits harassment and discrimination in many provinces
on less obvious grounds, such as record of offences and sexual
orientation. And that less obvious list appears to be growing,
with the introduction of gender identity and gender expression to
the list of prohibited grounds in Ontario.
Bill 33 (PDF), known as Toby's
Act or the Right to be Free from Discrimination and
Harassment Because of Gender Identity or Gender Expression,
2012, provides that every person has the right to equal
treatment without discrimination because of gender identity or
gender expression in the provision of services, goods and
facilities, accommodation, contracting, employment and membership
in a trade union. It was passed into law on June 19, 2012.
The Bill specifically amends the Code to ensure that every
person in Ontario is free from harassment because of sexual
orientation, gender identity or gender expression with respect to
accommodation and employment. This is the next step in the
evolution of the Code, which was last amended in the mid-1980s to
prohibit discrimination on the basis of "sexual
orientation". These recent amendments come soon after the
April 2012 decision of the Human Rights Tribunal of Ontario in XY v. Ministry of Government and Consumer
Services (PDF), which found that legislation requiring a
person to have "transsexual surgery" before they can
change the sex designation on their birth registration is
Meaning of Gender Identity and Gender Expression?
What is yet unknown is how the terms "gender identity"
and "gender expression" are to be defined. The Bill
does not define these terms.
Generally, gender identity is understood to mean an
individual's intrinsic sense of self and, particularly the
sense of being male or female. Gender identity may or may not
conform to a person's birth-assigned sex. A person's gender
identity is different from their sexual orientation. The personal
characteristics that are associated with gender identity include
self-image, physical and biological appearance, expression,
behaviour and conduct, as they relate to gender. Issues around
gender identity or transgendered persons are apparent, for example,
when a person cross dresses.
What this means for Employers and Service Providers?
Employers, at least in Ontario, will have to learn and
understand the role of gender identity and gender expression in the
workplace. They will have to ensure their existing policies
and procedures are updated to reflect the new protections,
including those policies relating to appearance and dress
code. Ontario employers will also need to ensure that their
hiring policies do not create any barriers to the hiring of
transgendered persons. They will be responsible for ensuring
that transgendered employees fully participate in the workplace.
Furthermore, Ontario employers will need to meet their duty to
accommodate, including considering the impact to transgendered
persons regarding workplace attire and/or uniforms, change rooms
and bathroom facilities.
Ontario is the first province (outside of the Northwest
Territories) and indeed the first jurisdiction in North America to
have expanded protections in this area to specifically include
gender identity and gender expression. This was the fourth
attempt to put in these amendments. Already, in British Columbia, a
similar bill was introduced in May 2011, but did not make it past
first reading. It is likely this issue will be brought forward
again in the future. And it may be that similar protections
eventually become enshrined in the laws of the other provinces in
Canada in the future.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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