2SLGBTQ+ Human Rights in the Workplace
June 8, 2021 By: Adrienne Fanjoy Read Time: 4 minutes
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Canada has made positive steps towards extending legal protection to members of the 2SLGBTQ+ community in recent years (for a timeline of key legal decisions and events that have contributed towards the progression of these rights in Canada, see here). The employment relationship, however, is still inherently imbalanced, and 2SLGBTQ+ individuals can be particularly vulnerable to abusive employers. Despite this power imbalance, all employers are obliged to respect their employees’ human rights. 

Members of the 2SLGBTQ+ community’s human rights can be triggered at work in numerous ways, including: 

  • An employer’s refusal to use an individual’s personal pronouns; 
  • A lack of gender-neutral bathrooms; 
  • The use of homophobic or transphobic slurs in the workplace; 
  • Workplace benefits or perks that assume employees are in heterosexual relationships;  
  • Mandatory uniform requirements where the uniforms are not gender neutral; 
  • Decreased mentorship opportunities; 
  • Heteronormative workplace policies; 
  • Being subject to harassment; and 
  • Presence of offensive jokes in the workplace. 

These examples demonstrate how prejudice, stigma, and stereotyping by co-workers or management can impede a person’s ability to thrive in their workplace. In some cases, this discrimination can even be tied to an employee’s termination.  

2SLGBTQ+ Employees are Protected by Legislation 

In Canada, sexual orientation, gender identity, and gender expression are explicitly protected under both provincial and federal legislation. These rights are also applicable in the relationship between a company and an independent contractor, and between a company and its volunteers. 

If you work in a federally regulated workplace, your human rights protection stems from the Canadian Human Rights Act.

If you work in a federally regulated workplace, your human rights protection stems from the Canadian Human Rights Act. In Ontario, however, most people will work for provincially regulated employers. Their protection comes from Ontario’s Human Rights Code. If your employer is based outside of Ontario, gender identity and gender expression may only be protected implicitly. Trans rights, however, have been recognized by human rights tribunals and commissions across Canada without exception.  

Types of Discrimination  

Discrimination can manifest in a workplace in three different ways.  

  1. Directly: Direct discrimination occurs where an employer’s treatment of an individual is clearly informed by prejudice towards a protected ground. For example, direct discrimination could include your employer: 
    • using a homophobic or transphobic slur; 
    •  telling you to try and sound “normal” when interacting with customers;
    • directing you to wear a gendered uniform that conflicts with your gender identity; or, 
    • or refusing to use your personal pronouns. Direct discrimination can also sometimes appear in policies, where those policies specifically address a protected ground. For example, a policy which explicitly excludes trans women from applying to a position would be an example of direct discrimination.  
  2. Indirect or subtle discrimination: This discrimination is sometimes only detected when looking at the entire context. For example, a trans employee may find that they are provided with less one-on-one mentorship within their workplace as compared to their peers. The employee suspects this is because senior leadership, who usually take on the mentor roles, are uncomfortable with the employee’s recent announcement regarding their personal pronouns.  
  3. Systemic discrimination: Systemic discrimination occurs when policies or practices appear neutral but have a negative effect on an individual relating to a protected ground. For example, if during a team bonding exercise, teams are made up of “girls vs. boys”, this could inadvertently lead to discomfort and excluding people who identify outside of the gender binary. 

Tribunals and courts recognize each of these forms of discrimination. If you are subject to subtle or systemic discrimination, you still have remedies (or legal solutions) available to you.  

Harassment  

Harassment based on a prohibited ground” (i.e. gender identity, sexual orientation etc.) in matters related to employment is prohibited in Canada. In the human rights context, harassment is generally defined as “unsolicited or unwelcome conduct, linked to a prohibited ground of discrimination and which has adverse consequences for the victim” where the conduct creates a hostile work environment that undermines the person’s personal dignity. Generally, harassment requires a pattern or persistence to the alleged conduct. A single comment or tasteless joke on its own will typically not be found to constitute harassment, but a single serious incident may be sufficient.  

Employers must prevent and respond to harassment in the workplace. If one or more co-workers are engaging in harassing behaviour, you should take detailed notes of the incident and raise it with your employer. If they do not take appropriate action to respond to the behaviour, you should consult with an employment lawyer.  

What next? 

If you are experiencing discrimination or harassment…  

  • Take detailed notes of what has happened. Use the “5 Ws” as a guide: when and where did this happen, who was involved, and what did you do in response? Try to write these notes shortly after the incident. Save copies of any discriminatory messages or policies. 
  • If you feel comfortable, try speaking to your employer about the issue. If you decide to speak with an employer, take detailed notes during the discussion.  
  • Depending on the circumstances, you can request accommodation from your employer. This request can be done via email, or letter. Identify the policy or action that you feel is connected to gender expression/identity, or sexual orientation. Explain what accommodation you are seeking. Co-operate with your employer to find a solution. 
  • If a conversation with an employer goes poorly, if they fail to take steps to stop harassment, or if they deny your accommodation request, consider seeking legal advice about your potential remedies. Be careful of delaying this step, as any application to a tribunal must be filed within one year of the date you experienced the discrimination.  

Employees are owed certain rights upon termination, and a terminated employee should always speak with an employment lawyer prior to signing a severance package. If you think you were terminated for reasons relating to a prohibited ground, however, it is particularly important to seek legal advice. If you were discriminated on grounds relating to your sexual orientation, gender expression, or gender identity (or any other protected ground), then you could also be entitled to reinstatement at your former place of employment 

If you want to be an effective ally in your workplace…  

If you have ideas on how to make your workplace more inclusive, raise them with your employer. Raising concerns about human rights and discrimination is an employee’s right. If your employer punishes you for doing so, they may be found guilty of reprisal (for more on reprisal law, see a recent article from Nelligan Law here). Whether you are a member of the 2SLGBTQ+ community yourself, or trying to be an effective ally, raising these issues proactively can help future employees enjoy an inclusive workplace. 

Conclusion 

If you are uncomfortable or unclear about any step in the process, you can reach out to an employment lawyer for advice. Nelligan Law also operates a human rights helpline for employees whose human rights have been impacted at work (see here for more information).  

The Canadian Human Rights Act and Ontario’s Human Rights Code are important tools in ensuring that 2SLGBTQ+ employees are protected. When necessary, taking legal steps can eliminate discriminatory practices, provide compensation for affected individuals, and lead to more inclusive workplaces. For more advice, consider contacting an employment lawyer, or using Nelligan Law’s free helpline 

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

Service: Employment Law

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