Gender Identity and Expression in the Workplace
Earlier this month we wrote about the laws around gender identity and expression. To recap, gender identity and expression are protected grounds under human rights laws both provincially and federally. Gender identity and gender expression are different than sex – a person assigned male or female at birth may transition to another gender or may identify as non-binary, and all can impact how they present themselves day-to-day.
While a look at the legislation and the case law are helpful, they do not always offer practical guidance for employers. Knowing what employers should not do in extreme circumstances does not offer much guidance as to what employers should be doing day to day to accommodate employees.
With any protected grounds under human rights law, employers are required to accommodate employees, just as they would make a workplace accessible for disabled employees. But what does accommodation actually look like when it comes to gender identity and expression? What should employers do to make things easier in the workplace?
Every employee is different, and their needs may be different, but what are some of the best practices that employers should follow in learning how to navigate this landscape?
Here are a few pointers:
Along with all of your other workplace policies (such as sick leave, social media, absenteeism, vacation, etc.), your workplace can implement a policy for accommodating trans or non-binary employees. This can be done even prior to an employee’s transition so that employees going through the process have a clear expectation of what to expect.
This policy can include a template accommodation plan that will be amended for individual employees. The plan should look at the roles that any managers and supervisors would play in the accommodation process, and how managers will be trained in making those accommodations.
The most important part of any accommodation policy is including the employee themselves. Learn how they wish to present themselves, and how they wish to be identified. How would they like their colleagues to be informed? When do they wish to be identified by a new name or pronoun? Will they require any time off for medical appointments related to their transition? Some transitioning employees take hormone replacement injections and may need accommodation during a shift for that purpose.
In larger corporations, there may be numerous places where a person’s name and biographical data are recorded. For individuals going through a gender transition, their former name may be a point of pain, whether they change their name legally (which will not happen immediately) or assume a new name.
Coordinate how an individual’s name can be changed system-wide, and how their new name will be recognized. This includes giving the person an opportunity to produce a new company ID, including a new photograph. Consider under what circumstances an employee’s legal or birth name would be required, and how anyone with access with that data will know to differentiate their current name.
In the United States, there has been tremendous controversy over the bathrooms that trans individuals use, but Canadian human rights law is quite different. Many businesses that welcome the public, such as restaurants and shopping malls, have either made washrooms gender-neutral or included a third option (besides male and female) for a private, gender-neutral washroom for anyone in need who is uncomfortable using a binary washroom.
If your setup does not permit a gender-neutral washroom or change room, make it clear to any trans employees that they will not be pressured to use a facility that they are not comfortable with, and instead work to provide them a safe, private place or help them to locate one nearby. Practically speaking, this can mean making an accessible bathroom an all-gender bathroom or installing individual privacy curtains in any change rooms.
For decades, workplace attire was clearly defined by gender, whether that was through a corporate uniform or simply company expectations. Suits and ties were expected in offices, as were dresses, skirts, and high heels. That has changed significantly in the past decade with a prohibition against gendered dress codes. Employers can no longer force female employees to wear skirts, dresses, or high heels as part of their uniform.
To best accommodate transgender or non-binary employees, the dress code should be even broader. Instead of specific garments, dress codes can stipulate a colour, or other items required for personal safety. Dress codes should also be clear about what cannot be worn, such as offensive slogans, any prohibition against bare legs or shoulders, etc.
Training & Safety
In order to properly accommodate transgender and non-binary employees, training is key. This may be novel ground for employees, supervisors, managers, and employers, but there are external resources out there that can provide both training and guidance. Training will help ensure that employees feel welcome and respected and will help reduce the potential for unacceptable or discriminatory behaviour.
The other half of that equation is keeping employees safe. Transgender or nonbinary employees may be particularly vulnerable, especially if they are in the middle of transitioning. Off-colour jokes, hurtful comments, or scornful looks are all inappropriate and can constitute workplace sexual harassment. Such conduct is not only unwelcome but expressly prohibited by the Occupational Health and Safety Act and the Ontario Human Rights Code.
Employers have a responsibility to keep all employees safe, and that includes a harassment-free environment. There may be a learning curve, but the right training for all involved will help ease relationships across the workplace.
Accommodating human rights needs is never a one-size-fits-all approach. Just as there is no single way to accommodate all employees with a disability, there is no single way to accommodate all trans or non-binary employees. These tips are only meant to offer an initial insight into some of the issues that may arise, and how best to handle them.
Accommodating gender identity and expression may be new territory, but there are great guides available, and I am happy to help. Employment lawyers have extensive experience in human rights issues as they relate to employment law, and can assist with designing and implementing policies and procedures that both protect your workers and your business. Contact our office today to set up a consultation.