Justine Laurier is a partner, labour and employment law, at Borden Ladner Gervais LLP.
Transgender, gender identity, gender expression and sexual diversity. Hardly a week goes by where we don't hear one or more of these words featured in news reports. Issues relating to the transgender community are becoming more relevant and prevalent in political and judicial arenas, as well as with regards to the job market.
In 2017, New Brunswick became the last province to enact explicit legislative protections against discrimination on the basis of either gender identity, gender expression or both, which unequivocally affirms that discrimination toward transgender people is prohibited. The federal government has recently done the same by adopting Bill C-16, which added direct protections on the basis of both gender identity and gender expression to the Criminal Code and the Canadian Human Rights Act.
Both the federal and provincial human rights legislation grant protection to trans employees and job candidates. First, there are provincial human-rights charters or codes across the country that generally prohibit employers from practising any form of discrimination based on gender identity or gender expression in the employment context – including hiring, training or promoting individuals – or terminating a trans person's employment on either of these grounds.
Employers have the duty to accommodate all employees, including trans employees, and treat them without discrimination on the basis of sex, gender identity or gender expression. Employers must also ensure their employees' rights to privacy, confidentiality and dignity are respected. This duty generally requires an employer to adjust, modify or adapt an employment standard or task so the employee can perform their job. However, the duty to accommodate can be limited when it amounts to undue hardship, which is assessed with regards to the financial and/or organizational impact the accommodation measure will have on the employer.
Tips for employers
When it comes to accommodating a transgender employee in the workplace, there are certain issues that can be anticipated. The employer must always work toward minimizing any barriers that might be present and curtailing their negative effects for the employee.
This may seem obvious: ensure the workplace is inclusive and free of harassment. Keep in mind that provincial labour standards laws in Canada protect every employee from psychological and sexual harassment on the job. Effective measures to prevent harassment include establishing an anti-harassment policy and raising awareness among employees about issues related to sexual diversity and inclusion.
A transgender employee may request a name change at work. An employer must respect a request for a name change when an employee's name is legally changed. This includes changing the employee's name in all records where the law so requires, including documents related to payroll and any professional order.
However, an employee might request a name change at work before obtaining a legal name change. An employee's gender identity and chosen name should be respected and used without any regard for any medical or surgical treatments or any legal or medical document "certifying" their gender identity or expression. Except where legally required, it is essential that the employer only use the employee's former name to refer to them until the employee is ready to disclose their new identity at work.
Gender-segregated areas and activities
Policies regarding washrooms, locker rooms or any other "gender-segregated" locations or activities may also need to be addressed during the accommodation process. To the extent that this is possible, employees should have access to services, facilities and activities that correspond to their gender identities. A solution with regards to facilities could be to designate washrooms and locker rooms as gender-neutral and remove any "gender-based" signage from their doors.
It is also foreseeable that an employee may need to be absent more often than usual for medical appointments, depending on whether or not they're undergoing medical treatment or surgical procedures. It's a good idea to work with the employee to plan for any leaves in order to adapt the employee's work schedule if necessary and mitigate any effects of these leaves.
It is essential that employers be pro-active and conciliatory in accommodating and including trans employees. Employers should try to anticipate reasonable requests for accommodation and any potential issues that could be associated with such accommodation. Respect, confidentiality, open-mindedness and co-operation should be the keywords that guide employers in developing their approaches for addressing the concerns of transgender employees going forward.
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