Employers’ obligations to prevent and address discrimination and harassment based on gender identity and gender expression

November 26th, 2014 by

The Ontario Human Rights Code (the “Code”) protects people from harassment and discrimination based on certain enumerated grounds. For example, people are protected from harassment and discrimination based on age, race or disability.

On June 19, 2012 the Code was amended to explicitly include “gender identity” and “gender expression” as prohibited grounds of discrimination.

On April 15, 2014 the Ontario Human Rights Commission (the “Commission”) released its Policy on preventing discrimination because of gender identity and gender expression (the “Policy”). The Commission explains that the Policy is needed because people who are transgender or gender non-confirming are one of the most disadvantaged groups in society. The Policy aims to clarify the rights of transgender and gender non-conforming individuals as well as to promote understanding and awareness.

The Policy defines “gender identity” as “each person’s internal and individual experience of gender,” and “gender expression” is defined as, “how a person publicly presents their gender.”  “Trans” or “transgender” is defined as “an umbrella term referring to people with diverse gender identities and expressions that differ from stereotypical norms.” “Gender non-conforming” is defined as “individuals who do not follow gender stereotypes based on the sex they were assigned at birth and may or may not identify as trans.”

It is important for employers to ensure that they are preventing transgender or gender non-conforming discrimination in the workplace. Under the Occupational Health and Safety Act, all workplaces in Ontario must develop a Workplace Violence and Harassment Policy and this policy must be reviewed each year. An employer’s Workplace Violence and Harassment Policy should specifically recognize protection for gender identity and expression among the other protected grounds of discrimination under the Code.

Transgender and other gender non-conforming individuals are entitled to legal protection from being discriminated against in the same way that individuals are protected from being discriminated against because of their race or age. It is likely that many employers will need to take proactive steps in order to comply with the Policy. For example, employers should:

  • have a valid reason for collecting and using personal information that identifies a person’s gender;
  • accommodate if a trans person asks them to have documents recognize a name that differs from their legal name;
  • ensure that trans people have appropriate access to washrooms, change rooms and lockers based on their lived gender identity;
  • ensure that any dress code policies allow trans people and other gender non-conforming individuals to dress according to their expressed gender;
  • meet with employees when necessary to create a individualized gender transition accommodation plan. For example, the employer may find it useful to meet with the employee to discuss when the employee would like to be addressed by their new name and new pronoun and when and how any related employment records will be updated.

The Policy explains that society is beginning to recognize the value and importance of respecting every person’s gender identity and expression. Employers have a legal obligation to do so. It is important that employers read the Policy and understand the actions it requires of them.

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