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Home > Our Insights > Take Pride @ Work: 5 Ways Employers Can Support Gender Diversity
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Take Pride @ Work: 5 Ways Employers Can Support Gender Diversity

Published:

July 28, 2017

Author(s):

  • Ryan Baxter, Lawyer at McInnes Cooper
  • Leah Kutcher, Former Lawyer at McInnes Cooper

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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:

  • Sex identifies the strictly biological description of a person.
  • Gender is much broader than sex, encompassing biological, cognitive and social aspects of a person including identity and expression.
  • A person’s gender identity is how that person sees and feels about themself.
  • A person’s gender expression is how that person  expresses or presents their gender.
  • Sexual orientation is a person’s sexuality, including, but not limited to, gay, lesbian, bisexual and heterosexual, asexual, pansexual, and polysexual.
  • 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 biological sex with 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 doesn’t seem to fit the stereotypical definitions of male / female.
  • Two-Spirit (or 2-Spirit) is a term that some Indigenous communities use to describe and includes 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.

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:

  • 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 LGBTQ2+ 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 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.

© 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 [email protected] to request our consent.

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  • Businessperson or “Business Visitor”: Canada’s Business Visitor Visa Rules

    Nov 22, 2016

    Canada’s most important trading relationship might undergo some change with the results of the 2016 U.S. election. Facilitating cross-border…

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  • The 5 Key Elements of an Attendance Management Program (AMP)

    Nov 15, 2016

    The employment contract is an exchange of labour for wages and other benefits, so employers are entitled to expect regular ongoing attendance…

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  • 3 Key Employment Law Steps to Take Now to Help You Sell Later

    Oct 19, 2016

    Business owners wear many hats – including employer. Your employees may be your business’s greatest asset, but they could also be your…

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  • Uber Angst: Employees & Independent Contractors in the Sharing Economy

    Sep 29, 2016

    Whether someone is an employee or an independent contractor has long caused employers a degree of angst. And the recent emergence of a new…

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  • No Union? No Problem: Supreme Court of Canada Decides Canada Labour Code Bars Dismissal of Non-Unionized Employees Without Cause in Joseph Wilson v. Atomic Energy of Canada

    Jul 15, 2016

    On July 14, 2016, the Supreme Court of Canada decided that the “Unjust Dismissal” sections of the Canada Labour Code ensure that…

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  • NS Dives into Pooled Registered Pension Plans (PRPP)

    Jun 30, 2016

    As of June 25, 2016, provincially regulated workers and employers in Nova Scotia, Quebec, BC and Saskatchewan can participate in Pooled…

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    Publications
  • Label Delicate: Workplace Dress Codes Test & Tips

    Jun 29, 2016

    Employers are entitled to mandate dress codes in the workplace, and even to discipline employees who refuse to comply. But a workplace dress…

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  • NS Poised to Take the Plunge into Pooled Registered Pension Plans (PRPPs)

    May 5, 2016

    Note: As of June 25, 2016, provincially regulated workers and employers in Nova Scotia, Quebec, BC and Saskatchewan can participate in Pooled…

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  • The Legal Defence of Due Diligence: Top 5 FAQs

    May 2, 2016

    “Due diligence” is a legal defence to many charges under occupational health and safety (OHS) laws. Here are five of the most…

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  • Meghan Felt and Sarah McInnes in the Chronicle’s Herald Cream: The Nuances of Labour Marketing Impact Assessments (LMIA)

    Apr 29, 2016

    It’s critical for an employer to obtain a Labour Market Impact Assessment (LMIA) when hiring a temporary foreign worker(s). Employers applying…

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  • The Nuances of Labour Marketing Impact Assessments (LMIA): 2 Key Exemptions to Minimum Advertising Requirements

    Mar 29, 2016

    Applying for and obtaining a Labour Market Impact Assessment (LMIA) is a critical step in hiring a temporary foreign worker(s). Employers…

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  • Construction Project Manager Sentenced to 3½ Years for Workplace Accident in R. v. Vadim Kazenelson (aka “Metron”)

    Mar 9, 2016

    In what appears to be the first case of the conviction of a front line supervisor under section 217.1 of the Criminal Code and sentencing to a…

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  • 3 Tips to Manage Employee Tardiness Due to Adverse Weather Conditions

    Feb 23, 2016

    Employee tardiness is a significant problem for employers - and bad weather is one of the top three reasons that employees give for it according…

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  • The Top 12 Employment Contract Terms

    Feb 1, 2016

    A well drafted and implemented written employment contract can be instrumental to both avoiding or resolving disputes both during the employment…

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  • An Ounce of Prevention is Worth a Pound of Response: The W-5’s of Managing Conflict & Preventing Harassment, Bullying & Violence @ Work

    Dec 7, 2015

    Violence has become an unfortunate reality in current society, and the workplace is not immune. With more people spending more time at work,…

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    Publications
  • 10 of the Top Employers’ Attendance Management Problems

    Aug 13, 2015

    The employment contract, at its core, is an exchange of work for compensation. So at a very basic level, employers are entitled to expect…

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    Publications
  • 3 Reasons for Directors, Officers and Supervisors To Take Occupational Health and Safety Personally

    Jun 25, 2015

    Most people know that a company itself has OHS obligations, and that it risks corporate liability if it violates those obligations. However, not…

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    Publications
  • 5 FAQs About Workplace Sex Discrimination

    Mar 31, 2015

    This publication has been updated as of June 24, 2021. Women make up close to half of the employed workforce: in 2019, Canadian women 15…

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    Publications
  • 5 Hot Tips to Help Employers Handle Office Romances

    Feb 13, 2015

    This publication has been updated as at January 26, 2022. With people spending so many of their waking hours at or connected to work these…

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    Publications
  • Supreme Court of Canada Says the Charter Protects the Right to Strike in Saskatchewan Federation of Labour v. Saskatchewan

    Feb 2, 2015

    On January 30, 2015 the Supreme Court of Canada decided that the Canadian Charter of Rights and Freedom’s protection for freedom of…

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    Publications
  • Bad Faith & Unfair Dealing in Employee Dismissal: 7 Lessons in 7 Years

    Jan 30, 2015

    In December 2014, the NL Supreme Court ordered an employer to pay its former employee $30,000 in moral damages to compensate him for the mental…

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    Publications
  • Privacy in Basic Cell Phones: SCC Continues Trend of Privacy Protection in R. v. Fearon

    Dec 11, 2014

    On December 11, 2014 the Supreme Court of Canada continued its trend to recognize privacy rights – and develop the law to protect them –…

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    Publications
  • 5 Tips to Manage Employer (Social) Host Liability

    Dec 5, 2014

    This article has been updated as of December 11, 2020. Employers host numerous events throughout the year – summer and holiday office…

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    Publications
  • Egg Films Epilogue: 5 Key Implications of NS Union Certification Based on “Industry” Dependence in Egg Films Inc. v. Nova Scotia (Labour Board)

    Nov 27, 2014

    Recently, the NS Court of Appeal confirmed that a union can be certified as the bargaining agent of employees based merely on their dependence…

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    Publications
  • 5 New Obligations on NB Employers Effective September 1, 2014 in NB Employment Standards Act

    Sep 30, 2014

    Effective September 1, 2014 the NB government implemented five important changes to the NB Employment Standards Act – the minimum standards…

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    Publications
  • Canada’s Temporary Foreign Worker Program Overhaul

    Jul 9, 2014

    On June 20, 2014 the Federal Government announced a major overhaul of Canada’s Temporary Foreign Worker Program. With stringent enforcement…

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    Publications
  • NS Workers’ Compensation Board Issues New Policy for Psychological Injury Claims

    Apr 7, 2014

    On March 31, 2014 the NS Workers’ Compensation Board (WCB) issued a new policy applicable to its adjudication of psychological injury claims…

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    Publications
  • Legal Update: Feds Crack Down On Employer Abuse Of Temporary Foreign Worker Program

    Apr 3, 2014

    On March 28, 2014 the Federal Government tabled Bill C-31 to implement the 2014 Federal Budget – including broad authority to impose cash…

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    Publications
  • Legal Update: More Changes to Federal Temporary Foreign Worker Program

    Jan 21, 2014

    On December 31, 2013, amendments to the Immigration and Refugee Protection Regulations and new Ministerial Instructions changing the Federal…

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    Publications
  • Privacy in Computer Contents: Supreme Court of Canada Picks Up Where It Left Off in R. v. Vu

    Nov 8, 2013

    On November 7, 2013, the SCC decided police require specific authorization in a search warrant to search the data in a computer because of the…

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    Publications
  • Privacy Trumps Safety As SCC Strikes Down Employer’s Mandatory Random Alcohol Testing Policy in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper

    Jul 2, 2013

    On June 14, 2013, the Supreme Court of Canada’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp…

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    Publications
  • SCC Strikes Down Employer’s Mandatory Random Alcohol Testing Policy

    Jun 14, 2013

    On June 14, 2013, in its highly anticipated decision in Communications, Energy and Paperworkers’ Union of Canada, Local 30 v. Irving Pulp…

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    Publications
  • Legal Alert: Federal Temporary Foreign Worker Program Changes

    Apr 30, 2013

    Note: Effective December 31, 2013, the Federal Government made additional changes to the Federal Temporary Foreign Worker Program. Click here to…

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    Publications
  • The Changing Tide of Atlantic Canadian Pension Legislation

    Apr 3, 2013

    Pension legislation throughout Atlantic Canada is in a state of change. In less than a year, each Atlantic Province has taken steps – in some…

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    Publications
  • Students with Learning Disabilities Have a Right to Education Comparable to that of the General Student Population in Moore v. British Columbia (Education)

    Jan 8, 2013

    On November 19, 2012, the Supreme Court of Canada (SCC) unanimously ruled a B.C. public school system’s failure to provide adequate and…

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    Publications
  • Supreme Court of Canada Confirms Employees May Have a Limited Reasonable Expectation of Privacy In Work Computer in R. v. Cole

    Nov 28, 2012

    On October 19, 2012 the Supreme Court of Canada (SCC) decided that a teacher criminally charged with possession of child pornography and…

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    Publications
  • Legal Alert: SCC Finds Limited Reasonable Expectation of Privacy In Work Computer But Evidence Still Admissible

    Oct 22, 2012

    Mr. Cole was a high school teacher with an employer owned and issued laptop computer.  He also used it for incidental personal purposes, which…

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    Publications
  • Supreme Court of Canada Confirms Reviewing Courts Should Give Due Deference to Administrative Decision-Makers Even At Early Stage of Process

    Jul 10, 2012

    On March 16, 2012, the Supreme Court of Canada (“SCC”) confirmed the decision of the N.S. Court of Appeal, reinstating the N.S. Human Rights…

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    Publications
  • “Canada Day” Or “July 1st”: Which Is The “Holiday” For Employees?

    Jun 14, 2012

    As any Canadian knows, July 1st – Canada Day – is the first long weekend of the summer; or is it?  This year, July 1st falls on a Sunday. …

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    Publications
  • 10 Tips to Deal with Employee Discipline for Social Media Use

    Mar 1, 2012

    Social media represents a profound cultural shift and employers must adapt if they want to avoid unnecessarily – and potentially costly –…

    Read More
    Publications
  • Alert: Significant Changes to NS Human Rights Complaint-Handling Procedure Effective January 1, 2012

    Jan 5, 2012

    Effective January 1, 2012, NS’s Human Rights Commission will receive, investigate and handle complaints under NS’s Human Rights Act under a…

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    Publications
  • Multiple Extensions of Termination Date Nullify Termination Notice

    Dec 19, 2011

    In a decision with application to Atlantic Canada, the Ontario Court of Appeal found that an employer’s multiple extensions of a terminated…

    Read More
    Publications
  • NB Court of Appeal Upholds Mandatory Random Alcohol Testing Policy

    Aug 6, 2011

    Note: On June 14, 2013 the Supreme Court of Canada issued its decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v.…

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    Publications
  • Ontario Court of Appeal Finds Reasonable Expectation of Privacy in Work Computer

    May 6, 2011

    In March 2011, the Ontario Court of Appeal found that an employee had a limited expectation of privacy in the contents of a work computer. The…

    Read More
    Publications
  • Changes to Federal Foreign Worker Regulations Effective April 1, 2011: A Serious Issue for Employers

    Mar 6, 2011

    In the midst of a sea of change, the Federal Government has enacted Regulatory changes significantly impacting employers who hire foreign…

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    Publications

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