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Is the recent increased support for Pride reflected in current legislation affecting employment?

Photo by Photo by Adam Scotti, Government of Canada website

Photo by Adam Scotti, Government of Canada website

As you may recall, July 3, 2016 marked the first time a Canadian Prime Minister marched in Toronto’s Pride parade – Justin Trudeau became the first prime minister to participate in the festivities as can be seen here, here and here.

With the theme of belonging and inclusion, the parade was dedicated to the 49 victims who were recently killed at the Pulse nightclub in Orlando, Florida.

But some may be wondering, ‘Do Canadian laws currently protect LGBT rights in the workplace, and have they kept up with the evolving climate of increased inclusion?’

The answer depends on the particular jurisdiction involved because the issue is addressed in human rights legislation across Canada. For instance, in Ontario, employers are not allowed to discriminate or harass a person in employment based on the grounds of sex, sexual orientation, gender identity, and gender expression.

Although most of these terms are not defined in Ontario’s Human Rights Code, it is generally understood that “sex” refers to a person’s biological sex of male or female. The term, “sexual orientation” is understood to mean the range of human sexuality from gay and lesbian to bisexual and heterosexual orientations. “Gender identity” involves a person’s deeply felt internal and individual experience of gender which may or may not correspond with biological sex, whereas “gender expression” involves how a person publicly presents gender and how others perceive that person’s gender through behaviour and outward appearance.

Moreover, both gender identity and gender expression include the rights of transsexuals (those who are identified at birth as one sex, but later identify themselves differently), transgenderists (those who exist in more than one gender), intersexed persons (those who are not easily classified as male or female based on the physical characteristics at birth or after puberty), cross-dressers (those who dress in clothing usually associated with the opposite sex).

Not all jurisdictions are as comprehensive as Ontario.

For example, the federally regulated jurisdiction’s Canadian Human Rights Act, British Columbia’s Human Rights Code, Quebec’s Charter of Human Rights and Freedoms, New Brunswick’s Human Rights Act, and Nunavut’s Human Right Act list sex and sexual orientation as prohibited grounds of discrimination and harassment, but not gender identity and gender expression.

Interestingly, with respect to gender identity and gender expression, some jurisdictions have included one ground of prohibited discrimination and harassment, but not the other. For example, Manitoba’s Human Rights Code, Saskatchewan’ Human Rights Code, and Northwest Territories’ Human Rights Act list only gender identity along with sex and sexual orientation, but not gender expression.

Yet, some are similar to Ontario and include both gender identity and gender expression, along with sex and sexual orientation, including Alberta’s Human Rights Act, Nova Scotia’s Human Rights Act, Prince Edward Island’s Human Rights Act, Newfoundland and Labrador’s Human Rights Act, and Yukon’s Human Right Act.

What does this mean for employers?

Even if an employer operates in a jurisdiction where certain above-mentioned grounds are not yet protected, it is strongly recommended that the employer becomes informed about these grounds and begins implementing policies that are inclusive to promote a healthy work environment. This is because things are moving toward increased inclusion and acceptance, and it is important for employers to acknowledge this.

Practically speaking, in the workplace, these types of discrimination and harassment can involve coworkers, to managers, and even those that the highest level of the organization. Harassment and discrimination can take several forms, including derogatory name calling, engaging in inappropriate physical contact, using inappropriate forms of address, engaging discipline due to one of these grounds, not hiring an applicant because of one of these grounds, and even allowing coworkers to mistreat employees based on one of these grounds.

In order to prevent and accommodate based on sexual orientation, gender identity, and gender expression, it is important for employers to remember that proactivity is key—employers are recommended to take steps to eliminate disadvantages by modifying or eliminating policies, rules, and practices that have a discriminatory effect. They are also recommended to create inclusive policies, clearly set out the consequences of not complying with the policies, train those in the workplace about the policies, and consistently enforce the policies.

Employers are also recommended to visit their local human rights commissions or tribunals for further information. For example, the Ontario Human Rights Commission has a policy that discusses sexual harassment and discrimination at work as seen here.

Along the same lines, it has a policy on preventing discrimination because of gender identity and gender expression as seen here, and a policy on preventing sexual and gender-based harassment here.

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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