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ONTARIO HUMAN RIGHTS COMMISSION’S NEW POLICY ON GENDER IDENTITY & GENDER EXPRESSION

August 22, 2014

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This year, the Ontario Human Rights Commission released its Policy on preventing discrimination because of Gender Identity and Gender Expression (“Policy”), which is a helpful guide for employers in understanding gender identity and expression, and in meeting their responsibilities under the Ontario Human Rights Code (“Code”) to prevent gender identity and gender expression discrimination.

Since 2012, “gender identity” and “gender expression” have been prohibited grounds of discrimination under the Code.  The Code ensures that trans people and other gender non-conforming individuals are entitled to be free from discrimination and harassment, similar to those people who are protected from discrimination and harassment based on race, age and disability. 

While gender identity and expression are not defined by the Code, the Policy provides the following definitions based on tribunal and court decisions:

  • “Gender identity” refers to an individual’s experience of being a woman, man or neither. 
  •  “Gender expression” is the way in which an individual expresses gender through, for example, dress and hair.  It should be noted that gender identity and gender expression are different from sexual orientation.
  • Trans” or “transgender”, on the other hand, refers to people with diverse gender identities and expressions that differ from stereotypical gender norms.

The Policy is sensitive to trans people and other gender non-conforming individuals being judged by their appearance for not conforming to stereotypical norms.  As such, discrimination can take many forms such as excluding trans people or non-gender conforming individuals from opportunities in employment available to others, or making comments that a workplace only wants employees who look like a “normal” man or woman. 

Gender-based harassment, also prohibited by the Code, includes:

  • Comments that an individual is not conforming with traditional roles of a man or woman;
  • Insults related to a person’s gender expression; and
  • Intrusive questions about an individual’s physical characteristics, clothing or mannerisms. 

For example, gender-based harassment includes telling a high-performing woman in a male-dominated workplace “to walk more femininely, talk more femininely, wear make-up, have her hair styled, and wear jewellery”.

Employers are reminded that they have an obligation to maintain an environment free of discrimination and harassment because of gender identity or gender expression, and to take steps to eliminate this behaviour, even if there is no objection or there is widespread participation in such behaviour.  The Policy leaves the employer with several steps to ensure compliance with the Code:

  • Developing and implementing anti-harassment and anti-discrimination policies
  • Developing and implementing an accommodation policy and procedure
  • Developing and implementing an internal complaints procedure and consistently monitoring and evaluating the procedure

·         Ensuring employees are properly trained and educated regarding gender-based discrimination and harassment

While the Policy is not law, it is an indication as to how the HRTO would approach complaints of gender discrimination in the future.  Additionally, this Policy is a tool for employers to implement pro-active practices and procedures to prevent discrimination or harassment based on gender identity and expression.

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.

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