Canada: Gender Identity And Gender Expression: New Prohibited Grounds Of Discrimination Considered By Tribunal

Gender identity and gender expression were added as protected grounds of discrimination under the Human Rights Code (the "Code") by Ontario's Bill 33, which came into force on June 19, 2012. The Human Rights Tribunal's decision in Vanderputten v. Seydaco Packaging Corp.1 is the first to interpret how gender identity and gender expression are treated in the workplace.

Before analyzing this decision, it is important to understand the scope of "gender identity". Gender identity is linked to 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. 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. For non-transgendered people, their identity will reflect their sex at birth. However, insisting that transgendered individuals be treated in accordance with their birth gender for all purposes is discriminatory because it fails to take into account their lived gender identity.

In Vanderputten v. Seydaco Packaging Corp., the applicant, Maria Vanderputten ("Vanderputten"), worked for the corporate respondent, Seydaco Packaging Corp. ("Seydaco"). During the time she worked there, she transitioned from living as a man to living as a woman, started the process of sex reassignment and developed female breasts. Vanderputten filed a human rights application alleging that she was subjected to workplace harassment, a poisoned work environment and a gender related incident with another co-worker, the individual respondent, Gerry Sanvido, which she alleged all played a role in her dismissal in violation of ss. 5(1) and (2) of the Code. The respondents denied the allegations and argued that the applicant was treated appropriately; they considered her to be a man and treated her like other men until Seydaco received medical or legal documentation that she was a woman. They further alleged that her dismissal was solely related to her attitude, involvement in workplace conflicts, and insubordination.

There was evidence of several incidents and issues that arose in the workplace, some of which were:

  • At the beginning of her transition from living as a man to living as a woman, Vanderputten told several female co-workers that she was in the process of transition and that in the future, she would use the women's washroom. She was told by the respondent that she would not be able to use the washrooms until she could prove she was female, but that this issue would be dealt with once she had completed her transition;
  • Vanderputten requested to change her shift times to avoid changing with men, but was not permitted to do so; and
  • Vanderputten was regularly subjected to name calling such as "faggot", "fruitcake", "fag".

In 2012, Vanderputten was dismissed following an altercation with a co-worker during which she allegedly threw a skid at him. She alleges that the co-worker had called her an "asshole", a "faggot" and that there was "nothing she could do" about the teasing. Both Vanderputten and the co-worker were suspended for the altercation. Vanderputten was later dismissed for insubordination, responding in an aggressive manner and failing to improve her behaviour after the numerous chances had been given.

The adjudicator found that Vanderputten was a transgendered employee and that she had been subjected to a poisoned work environment through, among other things, name-calling, harassing comments about her gender identity and derogatory postings on bulletin boards. Seydaco was specifically criticized for: (a) insisting on describing the employee as male, both orally and in writing; (b) failing to consider, explore or implement any solutions that would have allowed the employee privacy while changing; and (c) failing to investigate and respond reasonably to her allegations of harassment. The adjudicator awarded general damages in the amount of $22,000 ($21,000 against Seydaco and $1,000 against the co-worker) for injury to Vanderputten's dignity, feelings, and self-respect. The award amount had already taken into consideration Vanderputten's aggressive, inappropriate and insubordinate behaviour in the workplace, which sometimes played a role in the altercations. The adjudicator further awarded Vanderputten eight months' pay in lieu of notice.

The adjudicator made several useful comments in deciding this application. He noted that "treating people equally does not always mean treating them the same. The Code and the concept of equality require adapting to difference. This case is about what is required of an employer in a case where an employee's gender identity does not conform to traditional social norms".2 He further noted that in this case "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."3

The lesson is simple: Employers cannot ignore issues of gender identity and gender expression. They should educate themselves and their staff when faced with these situations. Furthermore, employers should take all reasonable steps to prevent incidents of harassment and a poisoned work environment from developing.

Although this decision does not address the use of washroom facilities or change rooms, the adjudicator commented that the issues involved in addressing transitions in the workplace may be complex, in particular regarding the use of washrooms and locker rooms. These issues may require a balancing and reconciling of various rights and interests. This decision also makes it clear that the protection provided by the Code is not meant to suggest that a transgendered person must necessarily be treated in exactly the same manner as others with their lived gender. It remains to be seen how future decisions will interpret how gender identity and gender expression are to be treated in the workplace in different circumstances.

Footnotes

1. Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977 (CanLII).

2. Ibid., at para. 59.

3. Ibid., at para. 66.

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