Take Pride @ Work: 5 Ways Employers Can Support Gender Diversity

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Take Pride @ Work: 5 Ways Employers Can Support Gender Diversity

July 28, 2017

By Ryan Baxter, Associate at McInnes Cooper,
Leah Kutcher, at McInnes Cooper

Trans and gender diverse employees face many challenges in the workplace – not the least of which are vulnerability to and fear of discrimination. But there are many ways in which an employer can support gender diversity while meeting its legal obligations to all of its employees. Here are five ways in which employers can support gender diversity in the workplace.

Educate yourself on the basics.

“Gender diversity” covers a range of gender-related identities and expressions, including transgender, gender non-conforming, gender fluid, two-spirited and intersex people. An employer doesn’t need to know everything about gender diversity or about the LGBTQ community. But it should have a basic understanding of key terminology and of the big picture, and be open to learning more. Here are ten of the most commonly referenced terms:

Sex identifies the strictly biological description of a male or female.
Gender is much broader than sex, encompassing biological, cognitive and social aspects of a person including identity, expression and the expectations of others.
A person’s gender identity is how that person sees and feels about themself.
A person’s gender expression is how that person publicly expresses or presents their gender, through things like their behaviour, appearance, name and pronoun.
Sexual orientation is a person’s sexuality, including gay, lesbian, bisexual and heterosexual.
The gender identity for many people corresponds with their biological sex, but gender non-conforming people don’t conform with the traditional expectations of their gender. For example, a transgender person is someone whose own gender identity or expression is different from the gender assumption others make based on that person’s biological sex.
Some, though not all, transgender people will undergo gender reassignment (or transition) to align their sex with the gender role in which they live and to better reflect their gender identity. Transgender people may have already transitioned, just be beginning the reassignment process, or be somewhere in the middle – and may be working at any stage of this transition.
A cisgender person is one whose gender identity and biological sex align.
An intersex person is one whose biological anatomy fit the stereotypical definitions of male / female.
Two-Spirit (or 2-Spirit) is a term that Aboriginal communities use to describe and include the range of gender diversity.

There are many additional terms that might also be helpful to know; Pride at Work Canada’s “Workplace Guide to Essential LGBT Terminology” and the Ontario Human Rights Commission’s “Glossary for understanding gender identity and expression” define many terms in understandable language.

Know your legal obligations.

Human rights laws prohibit employers from discriminating against an employee – treating them differently, directly or indirectly, with an adverse effect – based on certain personal characteristics listed in the human rights law. The personal characteristics (or grounds) that human rights law protects varies depending on which law applies (which province or territory, or the federal law), but they are generally similar: differential treatment of an employee in the workplace because of the employee’s biological sex, or because of attributes associated with their gender, regardless of their transition status, constitutes discrimination and is prohibited by law. On June 19, 2017, the Canadian federal government amended the Canada Human Rights Act to expressly prohibit discrimination on the grounds of “gender identity or expression”. With this amendment, the human rights laws of every Canadian province and territory, with the sole exceptions of Yukon and Nunavut, now expressly states that discrimination is prohibited on the grounds of some variation of gender identity and/or gender expression However, even if the law doesn’t specifically state this ground, Canadian courts, adjudicators and arbitrators have interpreted the grounds of “sex” and/or sexual orientation to include it.

This doesn’t mean that an employer must necessarily treat a gender non-conforming employee exactly the same as other employee with their lived gender; as the Ontario Human Rights Tribunal has observed, “[i]ssues about what human rights legislation requires in terms of treatment of transgendered, intersex, transsexual and other gender identities in areas that have been divided by sex have been, and doubtless will continue to be, the subject of litigation and analysis under human rights legislation” (see the 2012 Ontario Human Rights Tribunal’s decision in Vanderputten v. Seydaco Packaging Corp., as cited in its 2016 decision in Lewis v. Sugar Daddys Nightclub). It does, however, mean that employers must not discriminate against employees on the basis of gender expression or identity, and must accommodate such employees to the point of undue hardship – just as they must in the case of every personal characteristic – such as religion, family status, medical cannabis use and drug dependency, for example – protected by human rights laws.

Implement – and visibly support – a gender diversity policy.

One of the most important things an employer can do to support gender diversity in the workplace is to implement gender diversity policies and visibly support them. And employers that do so seem to reap hard business rewards: in February 2016, the Harvard Business Review’s “LGBT-Inclusive Companies Are Better at 3 Big Things”, referenced The Center for Talent Innovation’s report, “Out in the World: Securing LGBT Rights in the Global Marketplace,” for the proposition that “countering LGBT discrimination makes a corporation competitive on three fronts”. Recruitment is one of those fronts. For example, trans employees seek out employers that have a well-implemented gender diversity policy: a 2012 survey by the APLS Group, “Transgender In the Workplace”, found that 51% of trans individuals would not work for an employer that does not have a LGBTQ staff policy in place. And there’s broader appeal: in The Center for Talent Innovations’ report, 72% of all respondents, including non-LGBTQ people, indicated they are more likely to take a job with an employer that supports LGBTQ employees than one that doesn’t.

In particular, a gender diversity workplace policy should incorporate transition guidelines for transgender employees. These guidelines should be flexible enough so they can be easily individualized to meet the particular needs of a transitioning employee, while specific enough to provide a consistent framework that eliminates confusion and mismanagement and ensure a collaborative approach. Address issues like these in the guidelines:

Who is responsible for helping a transitioning employee manage their workplace transition.
What a transitioning employee can expect from management.
Management’s expectations of transitioning employees and the existing gender diversity or LGBTQ employee group in facilitating a successful workplace transition.
The general procedure for implementing transition-related workplace changes, such as adjusting personnel and administrative records, as well as communication plans for co-workers and clients.
Answers to frequently asked questions about matters such as dress codes and restroom use.

Employers should also update their employee orientation programs on discrimination and harassment to include gender diversity and LGBTQ policies, and review all existing workplace policies and the environment to ensure they are gender-neutral and satisfy the employer’s legal obligations. For example, a workplace dress code policy might appear neutral on its face, but have an adverse effect on gender non-conforming employees; it often takes minimal revision to transform such policies into gender-neutral ones. Employees also have the right to use the washroom facilities of their lived gender, regardless of their birth-assigned sex; depending on the workplace, it may be easy to convert facilities into gender-neutral ones. The Ontario Human Rights Commission’s “Best Practices Checklist” offers a useful guide to the matters to address and additional resources into which employers can tap.

Assist in workplace communications.

One of the most crucial ways an employer can support a gender non-forming employee is by communicating to other employees in the workplace – but only with the employee’s authorization; without it, disclosure of such information might constitute harassment. For example, when a trans employee is transitioning, a message of support from senior management addressed to co-workers, and specifically those who work in direct contact with the transitioning employee, announcing the employee’s plan to transition, communicating its values and relevant policies promotes a diverse and harassment-free workplace and can set a positive tone about the transitioning employee.

Help educate co-workers – and others – in the workplace.

Other employees may express discomfort with a co-worker’s gender expression. This sense of discomfort might be attributed to a lack of education, grief surrounding the loss of an existing relationship, uncertainty surrounding the future relationship or religious beliefs. Regardless of the source of the discomfort, it’s important for the employer to address those feelings and concerns through education and discussion. The employer should handle concerns based on religious beliefs by referring the employee to human rights legislation and its harassment policy intended to ensure equitable treatment of, and compliance with the employer’s legal obligation to, all employees. Additional education and training around workplace respect can often help co-workers’ understanding and reduce their discomfort around gender diversity.

This is an update of our article, 5 Ways Employers Can Support Transgender Employees in the Workplace, published on July 14, 2016.

Please contact your McInnes Cooper lawyer or any member of the Labour & Employment Team @ McInnes Cooper to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2017. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at publications@mcinnescooper.com to request our consent.

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