Recent amendments to the Human Rights Code (Ontario) added to the protected grounds of discrimination both gender expression and gender identity. The recent decision of Vanderputten v. Seydaco Packaging Corp.,[1] while filed prior to the amendments, is instructive on the handling of gender identity and expression issues in the workplace.
The applicant, Maria Vanderputten was transitioning from male to female. Ms. Vanderputten alleged that she was subjected to a poisoned work environment resulting from ongoing harassment including comments about her gender identity and the requirement to use the men’s change room. The employer insisted that she continue to be treated as a man until she had completed surgery. Ongoing harassment from co-workers included name calling and comments, being pushed, having things thrown at her, and postings on the bulletin board. The harassment was alleged to have played an important role in the culminating incident which led to her dismissal from employment.
Ms. Vanderputten had a discipline history including suspension for aggressive behaviour and altercations with co-workers. An issue in the proceeding was whether some or many of these events resulted from harassment from the co-workers to which the applicant responded, or as alleged by the employer, whether the applicant was the instigator of these incidents.
The Human Rights Tribunal (Ontario) decided that the employer failed to properly investigate the allegations and concerns of the employee and did not respond in a reasonable manner. Insisting that the employee be treated as a man until her transition was complete was determined to be an act of discrimination. The actions of the employer failed to take into account the employee’s needs and identity. The Adjudicator, however, acknowledged the complexity of the issues and the need to balance and reconcile various rights and interests.
The Adjudicator was critical of the employer’s position that Ms. Vanderputten was the instigator. In reaching this conclusion, the employer repeatedly failed to consider her version of events or consider the context in which the events took place. As a result, the employer would consistently conclude that Ms. Vanderputten was at fault without due consideration. The Human Rights Code (Ontario) mandates that an employer reasonably investigate and address complaints of discrimination and harassment. The Adjudicator rejected the arguments that the gender identity of Ms. Vanderputten played no part in the decisions by the employer.
Ms. Vanderputten received and award of $22,000.00 for injury to her dignity, feelings and self respect, and an award for lost wages. The employer was ordered to develop a formal human rights policy and undertake training to ensure future compliance. A request for reconsideration of the decision was dismissed by the Tribunal.
This case addresses the obligations of an employer in a case where the gender identity of an employee is not in conformity with social norms.
[1] [2012] O.H.R.T.D. 1946
