Human Rights Tribunals across the country are constantly
expanding the interpretation of prohibited grounds. Ontario
has recently joined Manitoba and the Northwest Territories and gone
one step further by recognizing gender identity as a prohibited
ground.Ontario's Bill 33, which came
into force on June 19, 2012, now protects both gender identity and
gender expression. Vanderputten v. Seydaco Packaging
Corp.is the first decision of the Human Rights Tribunal of
Ontario interpreting how gender identity and gender expression are
treated in the workplace.
An employee of Seydaco Packaging Corp. was transitioning from
living as a man to living as a woman. The employee was also
commencing the process for sex reassignment through the Center for
Addiction and Mental Health.
The employee filed a human rights application against Seydaco
Packaging alleging that workplace harassment and a gender related
incident with another coworker were the reasons why she was
At the hearing, the evidence showed that the employee had
received considerable discipline in the past for incidents relating
to displays of anger in the workplace and interpersonal conflict
with other coworkers. But the employee wasn't solely at
fault. She said she was subject to verbal and physical harassment
from her coworkers, in the form of swearing, name calling, and
pushing. Further, Seydaco Packaging required the employee to use
the men's changeroom at work until it "received sufficient
medical evidence that the [employee] was now a woman". The
employee asked to change her shift times so that she could avoid
changing with the men, but Seydaco Packaging denied her
The employee also said that on the day she was fired, her
manager called her derogatory names based on gender. The manager
asserted that the employee was displaying aggression and
"throwing skids around". In response, Seydaco Packaging
fired her for insubordination.
The Vice Chair of the Human Rights Tribunal of Ontario decided
that the employee had been subject to discrimination under the
Ontario Human Rights Code and that the following factors
created a poisoned work environment for the employee:
harassing comments about the employee's gender
the employer's insistence that she be treated as a man in
all respects until her surgery was complete; and
the employer's failure to investigate or provide a
reasonable response to her allegations that she was being harassed
due to her sex and gender identity.
The Vice-Chair made the following important comments:
"Insisting that the [employee] be treated in the same
manner as men until her transition was fully complete was
discrimination. It failed to take into account the [employee's]
needs and identity. The insistence that a person be treated in
accordance with the gender assigned at birth for all employment
purposes is discrimination because it fails to treat that person in
accordance with their lived and felt gender identity."
The Vice-Chair awarded the employee eight months' pay in
lieu of notice (based on her total seven years' service, with a
brief gap) and $22,000 in general damages. Although the
employer was responsible for $21,000 of the general damages, the
manager was responsible for $1,000 of those damages.
Take Away for Employers
By awarding $22,000 in general damages, the Human Rights
Tribunal of Ontario has sent a message about how severe this
situation was. As a result of this award, employers cannot afford
to ignore issues of gender identity and gender expression, even in
provinces in which such grounds are not specifically enumerated in
human rights legislation. Indeed, there is legislation working
its way through Parliament to amend the federal Human Rights
Act to include gender identity as a prohibited
ground. The chances that other provinces will follow suit is
Not ignoring these issues is no easy task, particularly since
the issues of gender identity and gender expression and how they
impact the workplace remain little understood. Employers
would be advised to educate themselves and their staff when faced
with these situations. Employers will want to prevent
incidents of harassment and a poisoned work environment from
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.
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.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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