Human Rights Code Amendments – What steps should an employer take?

June 18, 2012 | Carol S. VandenHoek

What action should an employer take to address the pending amendments to the Ontario Human Rights Code to protect their organization? These amendments will add to the protected grounds of discrimination the grounds of “gender identity” and “gender expression” with respect to employment. As well the amendments will address the employees the right to be free from harassment because of sexual orientation, gender identity and gender expression. These amendments await Royal Assent.

The pending amendments do not change the employer’s accommodation obligations and the process of accommodation including the requirement of cooperation from the employee. They will add yet another layer of complexity to an already challenging sphere for employers. Without education and understanding of what gender identity and gender expression encompass an employer could potentially misstep in properly responding to an accommodation request. Also, harassment complaints based upon these grounds may be pursued. Human resources personnel should ensure they are cognizant of the various gender identity issues that may arise in the workplace. Appreciation of and education around what it means to be “transgender”, “transsexual”, “intersex” and the use of the umbrella term “trans” are necessary to be able to properly address employee issues in light of these pending amendments. In some organizations these may be new and unique challenges which may require creative responses.

Current policies should be reviewed and be ready for updating to incorporate the new prohibited grounds. Special attention to the harassment policies within the organization are warranted to ensure that training and education are updated. This provides an excellent opportunity for education of employees about these issues to ensure they are aware of and informed of the obligations relating to gender identity and gender expression and the expectation of their employer regarding their conduct in the workplace. Removing stereotypes and addressing these new areas of protection with employees in a forthright manner can only assist an employer in later demonstrating their due diligence in this regard.

No doubt some additional cases will work their way through the system addressing these new grounds and further clarifying the scope of “gender identity” and “gender expression” in the workplace context.

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