Peter Straszynski describes the recently-recognized rights of
trans people and outlines a number of steps employers can take to
ensure that their workplace policies comply with employment and
human rights laws in Ontario.
In 2012, the Ontario Human Rights Code was amended to
add "gender identity" and "gender expression"
as prohibited grounds of discrimination.
Under the Code, everyone has the right to define their
own gender identity and to be recognized and treated as that gender
without discrimination or harassment, whether or not they have
undergone surgery or have their identity documents up to date.
Employers who deliberately choose not to hire candidates because
they are "trans-people" are in direct violation of the
Discrimination can also be "indirect", however, where
an organizational rule may appear to be neutral on its face, but
ultimately has the effect of excluding trans-people.
Employers (and businesses generally) should be aware that:
Trans people should have access to
washrooms, change rooms and other gender specific services and
facilities based on their lived gender identity
Organizations must design or change
their rules, practices and facilities to avoid negative effects on
trans people and to be more inclusive for everyone
Any exceptions must be legitimate in
the circumstances, and trans people must be provided any needed
accommodation unless it would cause undue hardship
The issue of gender identity and expression is one that has
recently earned much publicity and is quickly becoming a greater
and more frequent reality in the workplace.
Proactive employers should be updating their workplace
discrimination and harassment policies and training their
management and staff on this emerging area of employment and human
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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A recent decision from the Supreme Court of British Columbia, Ly v. British Columbia (Interior Health Authority) 2017 BCSC 42, provides helpful clarification of the law on termination of probationary employees on the basis of "suitability" and sends a cautionary note about the importance of fair and objective assessments during probationary periods.
The Ontario Court of Appeal recently gave employees and employers a valuable reminder: a breach of an employment contract does not, in and of itself, constitute a constructive dismissal. Even if the breach translates into hundreds of thousands of dollars not being paid.
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