There are many reasons for employers to celebrate inclusion this
week. A notable development is the amendments made by the
Province of British Columbia on July 25th to the BC
Human Rights Code to add "gender identity or expression"
as a prohibited ground of discrimination. These amendments
provide an opportunity to reflect on inclusiveness in the
The BC Code amendments make it clear that transgender persons
and other gender non-conforming individuals are entitled to legal
protections in the same way that people are protected from
discrimination and harassment based on race, age, disability and
all other prohibited grounds. The Government of Canada is
also expected to amend the Canadian Human Rights Act in the next
sitting of Parliament to include the explicit protection of gender
Considering decisions rendered prior to this week's
amendment that interpreted other prohibited grounds such as
"sex" to include protection for trans* persons, we can
expect the BC Human Rights Tribunal to continue to define gender
identity and expression on the basis of the individual's own
determination. The BC Tribunal has recognized that biological
sex does not reliably predict gender identity in all cases and that
it is the individual who has the right to determine their own
gender identity. Gender identity is generally understood to
be each person's internal and individual experience of gender
and gender expression is how a person publicly expresses or
presents their gender.
While not all transgender persons will require accommodation,
employers have a responsibility to maintain an environment free of
harassment and ensure there are no discriminatory systemic
practices. This should be considered in existing harassment
and bullying policies, as well as in prevention and response plans,
including education and training.
Employee requests for accommodation must be considered in good
faith. Some accommodation requests for trans* employees may
Access to appropriate washroom and change-room facilities
Reference within the workplace by preferred name and
Time off for medical treatments
Allocation of gender-appropriate uniform
Assistance transitioning in the workplace
On request, employers are obligated to consider alternative
approaches and investigate possible accommodation solutions.
Employers should keep records of requests and take prompt action in
response. Privacy and confidentiality will be
important. The dynamics of every situation will be
different. In some cases, accommodating the needs of everyone
involved and the associated logistics may be challenging. A
perfect accommodation is not necessarily required. Refusing
accommodation, however, may only occur in cases where there would
be "undue hardship" to implement a reasonable
Organizations should proactively develop their policies,
services and facilities in consideration of inclusion. The Guidelines issued by the Ontario
Human Rights Commission is a good resource but not necessarily the
strict legal approach that an employer must take in any given
The amendment to the B.C. Human Rights Code is a good reason for
employers to refresh and reassess their workplace policies and
culture to ensure trans* persons and other gender non-conforming
individuals are treated with dignity and respect, and enjoy equal
rights and freedom from discrimination.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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