2 August 2016

Take Pride: Celebrating And Accommodating Inclusion

Norton Rose Fulbright Canada LLP


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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.
Canada Employment and HR
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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 workplace.

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 identity.

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 include:

  • Access to appropriate washroom and change-room facilities
  • Reference within the workplace by preferred name and pronoun
  • 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 accommodation. 

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 circumstance.

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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