Canning: Company failed to accommodate transgendered employee

ByEd Canning

When Tony started to work at the packaging company, he was a man. By the time he was terminated seven years later, he had mostly completed the transition process to become a woman. He was hired as Tony, fired as Maria.

When this matter ended up at the Ontario Human Rights Tribunal, it noted that the Ontario Human Rights Code protects workers from discrimination and harassment and requires substantively equal treatment of employees. It further noted that: “As is well established in anti-discrimination law, treating people equally does not always mean treating them the same. The code and the concept of equality require adapting to difference. This case is, in part, about what is required of an employer in a case where an employee’s gender identity does not conform to traditional social norms.”

Admittedly, even before he started to begin his transition process and before anyone else was aware of it, Tony had some anger management problems in the workplace and did not always get along well with others. But you don’t have to be a perfect employee to be entitled to protection from harassment and discrimination.

As Tony began his transition process and started wearing women’s clothing to work, other employees noticed what was going on.

Employees changed into uniforms before they started their shift. The employer would not let Tony use the women’s change room or bathrooms until it felt it had either medical or legal documentation to establish that she was, in fact, a woman. Tony’s female name was Maria.

When Maria asked that she be allowed to start her shift at a different time so that she did not have to deal with comments from male employees in the men’s change room when she was changing into her uniform, her request was refused.

The employer here was not all bad. When Maria brought forth some complaints about derogatory comments other employees had made about her gender identity or sexual orientation, it sometimes responded appropriately and swiftly by either having staff meetings or disciplining or suspending the offending employee.

Maria sometimes inappropriately questioned other women, as she was going through her transition process, about aspects of their sexual experiences and bodily functions. When Maria was disciplined, part of the letter stated: “With this letter I wish to inform you that we will not tolerate any verbal harassment towards other employees. Especially with members of the opposite sex.”

And there lies the rub. Even though Maria’s physical transition had already begun and she was living and working as a woman, other women were referred to as “members of the opposite sex.”

The employer wasn’t getting it.

Its refusal to allow her to start her shifts at a different time in the context where it had already refused to allow her to use the women’s change room was further evidence of the poisoned work environment in which Maria was working.

By insisting that Maria be treated as a man until her physical transition had been completed, the employer was discriminatory as it failed to take into account her needs and identity.

As the tribunal adjudicator noted: “The insistence that a person be treated in accordance with the gender assigned at birth for all employment purposes is discrimination because it fails to treat that person in accordance with their lived and felt gender identity.”

For non-transgendered people, their identity will reflect the sex assigned at birth based on their genitals. However, for transgendered people, insisting on their treatment in accordance with their birth gender for all purposes is discriminatory because it fails to take into account their lived gender identity.”

Ultimately, Maria was involved in an altercation with another employee where he accused her of throwing a skid at him and she accused him of calling her a faggot. Without much investigation, Maria was terminated.

The tribunal found that given the poisoned work environment Maria was being forced to function in, it was not surprising that her behaviour declined. Within this context, both Maria’s treatment during her employment and her termination were found to be related, at least in part, to her gender.

Maria was awarded eight months’ lost wages and more than $20,000 in general damages.

One can only hope that her courage in taking her complaint to the Ontario Human Rights Tribunal will have the effect of increasing awareness and sensitivity with respect to transgendered issues.

 

Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at ecanning@rossmcbride.com

 

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