Transgendered Employees: What do Employers need to know?
Many transgendered employees experience discrimination and harassment in their workplace. Those behaviors could cause emotional trauma for the employee and lead to legal action against the Employer.
It is crucial that employers understand their obligations with regard to transgendered employees. This newsletter reviews some recent changes to legislation that affect transgendered employees in the workplace and identifies what those changes might mean for Employers.
Changes to Legislation
Human rights legislation prohibits discrimination on several bases. Provincially regulated employers are governed by the Nova Scotia Human Rights Act (the “NSHRA”). In 2013, the Province added “gender expression” and “gender identity” to the NSHRA so an Employer cannot discriminate against an employee on the basis that the employee identifies as a transgendered person.
For employers in the federal jurisdiction, the Canada Human Rights Act (the “CHRA”) applies. The CHRA does not specifically prohibit discrimination based on gender identity. However, a recently introduced bill aims to clarify the protection for “gender identity” and “gender expression” under federal law.
In unionized work environments, the collective agreement(s) may be relevant too. Many collective agreements prohibit discrimination or set out workplace rules that could affect transgendered employees negatively. An employee in that workplace could file a grievance (in addition to filing a human rights complaint) if they feel that they are discriminated against because they are transgendered.
Other legislation is also relevant. In December 2015, the Nova Scotia Government amended the Change of Name Act and the Vital Statistics Act. Changes to the Vital Statistics Act allow a person to apply to the Registrar of Vital Statistics to change the sex shown on that person’s birth certificate. The person has to provide a written statement that they have “assumed, identifies with and intends to maintain the gender identity that corresponds with the change requested.”
What those changes mean for Employers
After a consideration of the legislative changes and review of legal decisions, we urge Employer to consider the following issues.
- It is now abundantly clear that an Employer cannot discriminate against an employee on the basis that the employer is transgendered.
- An Employer could have to accommodate an employee who is transgendered. A practical issue that an Employer might encounter, and that might be considered to be part of the duty to accommodate, is washroom usage. For transgendered employees, the choice of which gendered washroom to use can be an issue. A Human Rights Tribunal in British Columbia recognized this point many years ago. In Ferris v. O.T.E.U. Local 15 (1999), 36 CHRR D/329, the Tribunal said:
I accept that transgendered people are particularly vulnerable to discrimination. They often bear the brunt of our society’s misunderstanding and ignorance about gender identity. In the context of the workplace, washroom use issues are often contentious and, in the absence of knowledge, sensitivity and respect for all concerned, can inflict a great deal of emotional harm on the transgendered person.
A Human Rights Tribunal in Ontario addressed the issue of which washroom a transgendered employee should use. In Salsman v. London Sales Arena Corp, 2014 HRTO 775, Adjudicator Kershaw held that transgendered people should have access to the washroom facilities of the gender with which they identify.
- Another area where an Employer might need to accommodate transgendered employees is dress codes. Dress codes should contain gender-neutral requirements for all employees, and/or allow employees to dress in accordance with their expressed gender.
- Employers must be vigilant to ensure that transgendered employees are not the subject of harassment in the workplace. In Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977, Vanderputten was a transgendered employee who was transitioning to become a woman. Harassment by fellow employees and lack of response by the Employer created a “poisoned work environment.” The Employer dismissed Vanderputten from employment, and Vanderputten filed a human rights complaint alleging that the Employer and a co-worker had discriminated on the basis of sex. A Human Rights Tribunal accepted Vanderputten’s arguments. The Tribunal awarded Vanderputten a payment equal to 8 months of wages (less three weeks that the Employer had paid initially) and $22,000 in damages.
- An Employer should generally accept the employee’s statement as to their gender. In the Vanderputten case mentioned above, Vanderputten told coworkers that she would be using the women’s washroom. At the point, Vanderputten was in the process of transition but identified as a woman. The Employer advised Vanderputten that it would not allow her to use the women’s washroom until her transition was complete. The Human Rights Tribunal ruled that “insisting that the applicant be treated in the same manner as men until her transition was fully complete was discrimination”.
- For formal documentation, though, an Employer needs to be aware that there is now a process in Nova Scotia by which an employee can legally change their “gender identity”.
In keeping with these legislative changes, Employers should only change a transgendered employee’s gender and name on legal documentation when they receive a certificate of change of name.
Also, as part of their gender identity, employees may choose to use a name (their “preferred name”), other than their given name (which is typically their legal name). Effort should be made to use an employee’s preferred name. While legal records such as a Record of Employment should reflect an employee’s legal name, employers should use a transgendered employee’s preferred name for non-legal matters such as scheduling or email correspondence.
- Finally, Employers should cultivate a work environment that provides everyone with dignity and inclusion. These values should be supported by policy statements and procedures that are respected by all.
This newsletter has highlighted some of the issues that an Employer may need to consider as workforces become more diversified. We hope that it is helpful to you.
This newsletter is produced by Wickwire Holm to keep our clients and friends informed of developments in the law and immerging issues. It is intended for general information purposes only. In preparing and circulating this newsletter, Wickwire Holm is not providing legal or other professional advice. Readers are urged to consult their professional advisers before taking any action on the bases of information contained in this newsletter.
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