Workplace Wire

The Ontario legislature added “gender identity” and “gender expression” as prohibited grounds of discrimination to the Human Rights Code (the “Code”) in the summer of 2012. The Human Rights Tribunal of Ontario (“HRTO”) had previously recognized discrimination against transgendered-people to be prohibited on the basis of “sex”, thus theCode amendments were seen by many to be largely symbolic – a formal acknowledgment of the challenges faced by one of the most marginalized groups in society. Now, one of the first decisions to consider accommodation of “gender identity” has been released.

In Vanderputten v. Seydaco Packaging Corp. and Gerry Sanvido, the Applicant began transitioning from living as a man to living as a woman after five years of service with her employer. The first phase of her transition involved hormone therapy, which triggered a number of physical changes including the development of breasts. Gender reassignment surgery would follow a few years later.

While the employer expressed outward support for the Applicant’s transition, it insisted on continuing to treat her as a man until her entire transition was complete – that is, until after surgery. In the intervening two year period, the employer refused to permit the Applicant to use the women’s change room (even though she had developed breasts). It also opted not to intervene when the Applicant complained she was being harassed by supervisors and co-workers through the occasional use of derogatory language and homophobic slurs.

For her part, the Applicant had a long disciplinary record, much of it stemming from well-documented anger management issues and inappropriate behaviour in the workplace. Thus, following a heated altercation with a co-worker in 2010, the Applicant was dismissed from her employment. The Applicant subsequently filed a complaint with the HRTO alleging discrimination, reprisal and a poisoned work environment.

The HRTO held that employers have a duty to accommodate “employees in transition.”  While recognizing that issues such as determining which change room is appropriate for transgendered employees may be challenging for some employers, continuing to insist that a transitioning employee be treated the same until gender reassignment is complete will not satisfy the duty to accommodate. In this case, the employer’s continued insistence on treating the Applicant like a man was discriminatory, as was its failure to canvass any reasonable accommodation options (such as designating a private washroom for her use, or changing shift times so that she could have private use of the men’s change room prior to her shift.) The employer also failed to meaningfully investigate the Applicant’s complaints of harassment by co-workers and did little to improve its poisoned work environment. Finally, the HRTO concluded that one of the reasons for the Applicant’s termination was indeed prejudice towards transgendered people.

In assessing remedy, the HRTO awarded the Applicant slightly less than the $25,000 in damages she sought after it concluded that the employee’s own conduct had, in some instances, contributed to the poisoned work environment.  The HRTO also held a supervisor jointly and severally liable for $1,000 of the damages award against the employer for his personal conduct towards the Applicant. In respect of lost wages, because of the Applicant’s lengthy disciplinary record, the HRTO awarded eight months of back pay – far less than the damages to the date of hearing which the Applicant had requested.

This decision highlights the importance of both the procedural and substantive components of the employer’s duty to accommodate, and the need to canvass multiple accommodation options before concluding that none are possible. The decision also shows that the HRTO will take an employee’s own conduct into account when assessing remedy, especially where their behaviour may have exacerbated already strained workplace relations.