The Ontario Human Rights Code (the “Code”) was recently amended to add “gender identity or gender expression” as a ground of discrimination. Previously, applications by transgendered persons alleging discrimination have been pursued under the prohibited grounds of sex or sexual orientation. The amendments create a new prohibited ground that focuses on transgendered individuals. There is no definition of “gender identity or gender expression” in the Code, its interpretation will develop through the case law.
Although this amendment is unlikely to have much of an impact on most employers, it does signal a heightened sensitivity to issues of discrimination related to transgendered individuals. One area of concern for employers is harassment of transgendered employees by co-workers. Employers need to ensure that employees are not subject to inappropriate comments and other forms of harassment in the workplace as a result of their gender identity.
Employers should also be mindful of how certain practices or policies could result in unintentional discrimination that could lead to human rights complaints from transgendered employees.
