Toby’s Act (Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression), 2012 was passed on June 13, 2012 and received Royal Assent on June 19, 2012, just days before the start of Pride Week in Toronto.
That Act amends the Ontario Human Rights Code (“Code”) such that discrimination on the basis of gender identity or gender expression is now prohibited in services, goods, facilities, contracts, employment and vocational associations such as trade unions, trade or occupational associations or self-governing professions. Similarly, harassment in accommodation or employment on those grounds is now prohibited.
Although neither gender identity nor gender expression is defined under the Code it is to be anticipated that, in line with established case law, they will be broadly interpreted to advance the equality of opportunity goals of the Code.
This development will require employers to be thoughtful and proactive in addressing issues that may arise from it. In some cases a balancing of rights among employees may be required, notably where sharing washrooms or changing facilities is concerned. Care must be taken to keep an open mind when faced with accommodation requests by transgendered employees and, as the Supreme Court has cautioned in its well-known Meiorin decision, employers should “be sensitive to the various ways in which individual capabilities may be accommodated” and “innovative yet practical when considering how this may best be done in particular circumstances.”
Employers may also wish to review existing policies to ensure compliance with this development. As the Supreme Court has also stated in Meiorin:
Employers designing workplace standards owe an obligation to be aware of both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible. Courts and tribunals must bear this in mind when confronted with a claim of employment-related discrimination. To the extent that a standard unnecessarily fails to reflect the differences among individuals, it runs afoul of the prohibitions contained in the various human rights statutes and must be replaced. The standard itself is required to provide for individual accommodation, if reasonably possible.