Canadian Employment Law Today

Canadian Employment Law Today | 9 Canadian HR Reporter, a Thomson Reuters business 2018 Ask an Expert Flexibility is key in the search for accommodation gender identity and/or expression as a prohibited ground of discrimination, the law is clear that transgender people are protected from discrimination on the ground of sex. As with the previous question, where a workplace policy or rule adversely impacts an employee because of their gender identity or gender expression, an employer will need to take reasonable steps to accommodate that employee. e ability to use the appropriate wash- room or locker room is obviously a criti- cal aspect of one's gender identity and the case law certainly recognizes this. Refusing to protect an employee's rights regarding the use of a washroom that matches their gender identity has been found to be discriminatory. With respect to this scenario, the best approach is a flexible one. An employee is under no positive obligation to tell the employer that they are considering tran- sitioning their gender. However, once an employee's gender identity creates bar- riers in the workplace for the employee, it is at that point that the dialogue will typically begin. e need for open and respectful dialogue in the search for ac- commodation is critical. Demanding that the employee use ei- ther women's or men's facilities based solely on the employer's assessment of the employee's appearance would most likely be contrary to the employer's duty to accommodate. An employer will want to be certain that it has sufficient infor- mation in order to meaningfully address an employee's accommodation requests. However, any request for information should be made with the employee's dig- nity and privacy rights at the forefront. For example, requiring medical proof of an employee's transition where the re- quested accommodation relates to wash- room or change room facilities in most instances would be contrary to the em- ployee's right to be free of discrimination in employment. For example, in Vanderputten v. Seyd- aco Packaging Corp., the Ontario Human Rights Tribunal found that an employer had discriminated against an employee who was in the process of gender tran- sition. e complainant in that case had worked for the employer for a number of years as a male. When she began the transition process from male to female, the complainant was forthright with her employer in her requests to accommo- date her sex reassignment. Such requests included the ability to eventually use the women's washroom and to change in the women's change room instead of the men's change room. She also asked for her shift times to be changed so that she would not have to change with her male co-workers in order to avoid harassment and abusive comments from co-workers while changing. However, the employer refused the employee's requests, taking the position that it would not consider her request- ed accommodations until she provided medical and legal proof that she was a woman. e tribunal found the employ- er's attitude inconsistent with human rights norms. In the context of gender identity and expression, the accommo- dation afforded to an employee must be based on the individual and how the in- dividual identifies themselves. According to the tribunal, treating the complain- ant in the same manner as men until her transition was fully complete amounted to discrimination, as this failed to take into account the complainant's need for identity. e workplace discrimination was further compounded by the em- ployer's failure to provide a safe work en- vironment and failure to respond to the employee's complaints of harassment by co-workers, which were again, based on the same prohibited grounds of discrimi- nation. In the present scenario, an employer may want to explore using single stall washrooms or unisex washrooms that use floor to ceiling walls with gender neutral sink areas. It is important to bear in mind that, in the context of gen- der transition, an employer's obligations extend well beyond providing appropri- ate washroom and change room facili- ties. Employers should have appropriate guidelines in place to assist employees who are transitioning from one gender to another at the workplace. Such guide- lines might set out the employer's role in facilitating the transition process, medi- cal leave entitlements and benefits cov- erage, updating employee records, and dress code provisions. Again, flexibility is key in the search for accommodation. Taking the lead from the employee through respectful dialogue will go a long way to facilitating a safe work environment. Both the em- ployer and employee are under a shared obligation to meaningfully participate in the process. While it is true that an employee is not entitled to the perfect accommodation, it goes without saying that in the context of gender transition an employer must be sensitive to the em- ployee's needs. For more information see: • Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977 (Ont. Human Rights Trib.). Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975-7144 or lschatz@ mltaikins.com. « from ASK AN EXPERT on page 2 CREDIT: LIGHTSPRING/SHUTTERSTOCK

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