Partnered Article: Take Pride @ Work: 5 Ways Employers Can Support Gender Diversity

By McInnes Cooper

The rapid rise in ESG (Environment, Social and Governance) principles has increased focus on   workplace diversity and inclusion (DEI) generally. Yet trans and gender diverse employees continue to 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, meeting its legal obligations to gender diverse – and all – employees. Here are five ways in which employers can support gender diversity in the workplace.

1. Learn 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 LGBTQ2S+ people. But it should have a basic understanding of the key issues and terminology and be open to learning more. This will get you started.

Workplace Discrimination. It’s an issue: a 2020 Statistics Canada survey indicates that 47% – essentially, half – of LGBTQ2S+ workers were targeted for sexualized and discriminatory behaviours at work for which comparisons to non-LGBTQ2S+ works is possible. 

Terminology. Ten of the most commonly referenced terms are:

• 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. There are many available resources; for example, the Ontario Human Rights Commission’s “Glossary for understanding gender identity and expression” define many terms in understandable language.

Pronouns. Personal pronouns have expanded beyond the traditional gendered pronouns “she/he” and “her/him”. The most common is “they/them”, but there are others, such as “Ze / Hir / Hirs”. Familiarize yourself with common pronouns – and go further by giving all employees the opportunity to select and to display their preferred pronouns.

2. Know Your Legal Obligations

Human rights laws prohibit employers from discriminating against an employee – treating them differently, directly or indirectly, with a resulting adverse effect – based on protected personal characteristics listed in the applicable human rights law. The personal characteristics (or grounds) that human rights law protects vary 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. Despite this, LGBTQ2S+ employees continue to experience gender expression and identity discrimination in the workplace. For example:

Gendered Nicknames. In its 2021 decision in Nelson v. Goodberry Resturant Group Ltd. dba Buono Osteria and others, the B.C. Human Rights Tribunal found that the use of gendered nicknames – in that case, “sweetie”, “sweetheart” and “honey” – in relation to a gender diverse employee, who repeatedly asked both their co-worker and management that the names stop, adversely impacted the employee in a way connected to their gender identity, and was discriminatory.

Pronoun Misuse. The B.C. Human Rights Tribunal put it this way in the Nelson case: “Like a name, pronouns are a fundamental part of a person’s identity”. That decision, as well as the 2021 decision of the Ontario Human Rights Tribunal in EN v. Gallagher’s Bar and Lounge, found the deliberate misuse of pronouns by co-workers and, in E.N. their superiors, in relation to gender diverse employees, again despite the employees’ repeated requests to correct the behaviour, was discriminatory. It’s important to note that in the Nelson case, the Tribunal acknowledged that human rights law is concerned with impact rather than intent, but that intent is still relevant; innocent mistakes might not lead to a human rights complaint – but callous, careless or deliberate misgendering magnified the harm.

Poisoned or Toxic Workplace. Sometimes, the whole is greater than the sum of its parts. Often, the discrimination isn’t limited to a single category of conduct, but a combination of ongoing conduct and behavior that ultimately adds up to a poisoned or toxic work environment for a gender diverse employee. For example, in the 2012 decision of the Ontario Human Rights Tribunal in Vanderputten v. Seydaco Packaging Corp., the Tribunal found the employee was subject to a poisoned work environment as a result of harassing comments about her gender identity, the requirement she use the men’s change room (the employee was transitioning from male to female), and the employer’s insistence she be treated as a man until she completed surgery. Similarly, in the Manitoba Human Rights Adjudication Panel’s 2019 decision in T.M. v Manitoba (Justice), the Panel found ongoing harassment of a gay employee – constant sexualized nicknames, slurs, “jokes”, innuendo, and even physical touching – based on his sexual orientation created a toxic work environment that discriminated against him on the basis of his sexual orientation. And while sexual orientation and gender identity and expression aren’t identical, the discriminatory conduct often is.

Employer’s Failure to Reasonably Respond. It’s the employer that’s ultimately responsible for ensuring a safe workplace for all – including gender diverse – employees. An employer’s failure to respond at all, or to respond reasonably, to workplace discrimination by others can itself amount, or contribute, to discrimination. As the Board reiterated in Nelson, the employer is obligated to respond reasonably and appropriately to discrimination complaints, including to investigate. A human rights adjudicator can consider a number of factors when assessing an employer’s response, like whether they: have a proper understanding of discrimination; treated the allegations seriously and acted “sensitively”; and the complaint was resolved in a manner that ensured a healthy workplace. And in every one of the Vanderputten, T.M., EN and Nelson, the employer’s response to the discriminatory conduct fell short of what they were obligated to do.

Employment Termination Based on Gender Identity. The termination of a gender diverse employee’s employment, if their gender identity is even one factor in the termination decision, can be the sole discriminatory act. But often, the employment termination, whether it be an express termination (as in, for example, the Vanderputten and Nelson cases), or a constructive dismissal (as in the EN case), is the culmination of a course of discriminatory conduct, including the employer’s failure in its obligation to respond. And whether it’s the only act, or a culmination of conduct, terminating an employee’s employment based, even in part, on their gender identity breaches the employer’s legal obligation not to discriminate in employment.

The legal prohibition against discrimination 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 observed in Vanderputten, “[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”. It does, however, mean that employers must not discriminate against employees on the basis of gender expression or identity. And they 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. 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 (now COQUAL) 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-LGBTQ2S+ people, indicated they are more likely to take a job with an employer that supports LGBTQ2S+ employees than one that doesn’t.

Policies. Review all existing workplace policies and the environment to ensure they are gender-inclusive and fulfil 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-inclsuive ones. And employees 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-inclusive ones. But even if it’s not, and even if the employee is, for example, in but not yet completed transition (as in the Vanderputten case), the employer is obligated to accommodate. 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.

On-boarding. Update employee orientation programs on discrimination and harassment to ensure they include gender diversity and LGBTQ2S+ policies.

Transition Guidelines. In particular, incorporate transition guidelines for transgender employees in your gender diversity workplace policy. 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 LGBTQ2S+ 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 or change room use.

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 itself 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. Educate & Train Co-Workers, Managers & Supervisors

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 attempt to address those feelings and concerns through education and discussion. But ultimately, the employer is responsible to provide all employees – including gender diverse employees – with a workplace that’s healthy and safe and free from discrimination and harassment.

All employees. Additional education and training of all employees around workplace respect can often help co-workers’ understanding and reduce their discomfort around gender diversity. For example, 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. However, For example, in the 2021 decision of the Alberta Labour Relations Board in Complainant v. Alberta Union of Provincial Employees, an employee challenged the gender identity of an external transgender seminar presenter during an employer-sponsored workplace diversity and inclusion seminar, apparently based on his religious beliefs. After the presenter complained, the employer conducted an investigation and suspended the employee for five days, finding his conduct was discriminatory and disrespectful. The employee grieved the discipline; the union ultimately declined to take the grievance forward because it was unlikely to succeed. The employee alleged the union failed in its duty of fair representation by discriminating against him because he expressed his religious beliefs throughout the seminar, investigation and the board hearing. The Labour Board found there was no evidence the union discriminated against the employee.

Managers & Supervisors. While training and education of all employees is important, managers and supervisors are on the front-lines of your organization, ideally poised to recognize issues, resolve them, and enforce your policies. Be sure to educate and train managers and supervisors on your legal obligations, including workplace respect, not to discriminate, and to accommodate protected personal characteristics to the point of undue hardship when required.

Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Team @ McInnes Cooper to discuss how you can support gender diversity in your workplace, and check out our MC Training workshop, Duty to Accommodate Dilemmas, to train your managers and supervisors on dealing with gender diversity accommodation requests.

This article is information only; it is not legal advice. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2017. All rights reserved.