July 28, 2017
This publication has been updated as of July 15, 2020.
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.
1. Educate yourself on the basics
“Gender diversity” covers a range of gender-related identities and expressions, including, but not limited to, transgender, gender non-conforming, gender fluid, two-spirited and intersex people. An employer doesn’t need to know everything about gender diversity or about LGBTQ2+ people. 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:
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.
2. 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, 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”. The human rights laws of every Canadian province and territory, expressly state that discrimination is prohibited on the grounds of some variation of gender identity and/or gender expression.
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 (sic), 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, and mental disability, for example – protected by human rights laws.
3. 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. And there’s broader appeal: in The Center for Talent Innovations’ report, 72% of all respondents, including non-LGBTQ2+ people, indicated they are more likely to take a job with an employer that supports LGBTQ2+ 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:
Employers should also update their employee orientation programs on discrimination and harassment to include gender diversity and LGBTQ2+ 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.
4. 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.
5. 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.
Please contact your McInnes Cooper lawyer or any member of our 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.
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