p>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 the first post, we
introduced the Policy:
Click Here. In last week's post, we addressed how employers
can prevent discrimination:
Part 3: Gender Identity, Gender Expression and the Workplace
Transgender employees can be exposed to discriminatory behaviour
and attitudes in a number of different ways. Employers face the
challenging task of protecting these employees while simultaneously
educating the workforce to combat the underlying attitudes that
give rise to discriminatory behaviour. For example, transgender
employees are at risk in the following ways:
Trans people can struggle to obtain identity documents that
accurately describe their gender which can pose administrative
challenges for both the employee and the employer.
Both at and away from the workplace, transgender people can
face stigmatization and isolation. This can lead to mental health
Employers can also face the challenges that arise from
confusion and misunderstanding about transgender people. One
particularly "hot" issue is whether trans gender people
can use washrooms that are appropriate to their gender after their
transition. Some employees might not feel comfortable with this and
employers have to balance these concerns with the rights of trans
gender employees. Gender neutral washrooms can provide a solution
in some situations but there will be situations where such
workarounds are not possible.
In an interview with CTV, Ryan Dyck of the LGBTQ
advocacy organization Egale Canada identified "...education,
education, education" as critical to transgender people
gaining greater acceptance within society. In the workplace, this
is equally applicable. By following the Policy, employers in
Ontario can signal to their employees what is acceptable behavior.
They can also introduce measures such as gender neutral washrooms
to avoid some of the challenges identified above. However, it is
only through education about the differences between sex and gender
that the confusion and prejudice that gives rise to fears such as
those identified above can be combatted directly. In the workplace,
the responsibility for this education lies with the employer.
Written with the assistance of Andrew Nicholl, 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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