Does your workplace have gender-neutral washrooms? Does your
workplace have a dress code that accommodates all forms of gender
expression? These are just two of the questions raised by the
Ontario Human Rights Commission's ("OHRC")
Policy on Preventing Discrimination because of Gender
Identity and Gender Expression (the "Policy").
In this multi-part series, the Policy will be examined in three
Introduction to the Policy;
Understanding how the Policy can
Prevent Workplace Discrimination; and
Challenges that Employers might
Part 1: Gender Identity, Gender Expression and the
Workplace – Introduction to OHRC's Policy
On June 19, 2012, the Ontario Human Rights Code (the
Code) was amended to include "gender
identity" and "gender expression" as prohibited
grounds of discrimination. In January, 2014, the OHRC released an
updated version of its policy on preventing
discrimination on the grounds of gender identity and gender
expression. The policy sheds light on the meaning of 'gender
identity' and 'gender expression' in the context of
human rights and discrimination.
At the outset, the OHRC notes that the Code does not
define the grounds of 'gender identity',
'gender expression' or
'sex.' Rather, it looks to social science
research, jurisprudence, self-identification and use in
contemporary culture to understand the substance of these terms as
expressed in the Code and OHRC policies.
Notwithstanding this approach, the policy does provide basic
definitions of terms that are key to understanding these relatively
new grounds of discrimination. Most importantly, the policy defines
the term 'sex' as the anatomical
classification of people as male, female, or intersex, which is
usually assigned at birth. This definition is contrary to the
common use of the term 'sex' in three ways:
One's sex is not required to be
either female or male – it can also be intersexed.
Sex is something that is
'assigned' at birth as opposed to being an inherent and
permanent characteristic. This assignment may not align with the
gender identity or expression of the individual to whom that sex is
Sex is an 'anatomical'
classification. By specifying that sex is to be understood purely
as an anatomical feature, the OHRC recognizes that one's gender
identity and expression may contrast with their anatomical
This understanding of the term 'sex' is key to learning
how workplaces can potentially discriminate against individuals
based on their gender identity and gender expression. Next week,
this series will expand on 'gender
identity' and 'gender
expression' and consider how the policy can prevent
Written with the assistance of William Goldbloom, articling
Norton Rose Fulbright Canada LLP
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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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