Ryan Baxter
Ryan Baxter, Lawyer, McInnes Cooper
Leah Kutcher
Leah Kutcher, Lawyer, McInnes Cooper

Trans and gender diverse employees face many challenges in the workplace – including vulnerability to and fear of discrimination. Here are five ways in which employers can support gender diversity in the workplace while meeting their legal obligations to all of their employees. 

Educate yourself on the basics. “Gender diversity” covers a range of gender-related identities and expressions, including transgender, gender non-conforming, gender fluid, two-spirited and intersex people. An employer doesn’t need to know everything about gender diversity or about the LGBTQ community. But it should have a basic understanding of key terminology – like the meanings and differences between terms such as sex, gender, gender identity, gender expression, transgender and cisgender – and of the big picture, and be open to learning more.

Know your legal obligations. Human rights laws prohibit employers from discriminating against an employee – treating them differently, directly or indirectly, with an adverse effect – based on certain personal characteristics listed in the human rights law. The personal characteristics (or grounds) that human rights law protects varies depending on which law applies (which province or territory, or the federal law), but they are generally similar: differential treatment of an employee in the workplace because of the employee’s biological sex, or because of attributes associated with their gender, regardless of their transition status, constitutes discrimination and is prohibited by law. Employers must not discriminate against employees on the basis of gender expression or identity, and must accommodate such employees to the point of undue hardship just as they must in the case of every personal characteristic – such as religion, family status, medical cannabis use and drug dependency, for example – protected by human rights laws.

Implement – and visibly support – a gender diversity policy. One of the most important things an employer can do to support gender diversity in the workplace is to implement gender diversity policies and visibly support them. And employers that do so seem to reap hard business rewards. A gender diversity workplace policy should incorporate transition guidelines for transgender employees. These guidelines should be flexible enough so they can be easily individualized to meet the particular needs of a transitioning employee, while specific enough to provide a consistent framework that eliminates confusion and mismanagement and ensure a collaborative approach. Employers should also update their employee orientation programs on discrimination and harassment to include gender diversity and LGBTQ policies, and review all existing workplace policies and the environment to ensure they are gender-neutral and satisfy the employer’s legal obligations. For example, a workplace dress code policy might appear neutral on its face, but have an adverse effect on gender non-conforming employees; it often takes minimal revision to transform such policies into gender-neutral ones. Employees also have the right to use the washroom facilities of their lived gender, regardless of their birth-assigned sex; depending on the workplace, it may be easy to convert facilities into gender-neutral ones.

Assist in workplace communications. One of the most crucial ways an employer can support a gender non-conforming employee is by communicating to other employees in the workplace – but only with the employee’s authorization; without it, disclosure of such information might constitute harassment. For example, when a trans employee is transitioning, a message of support from senior management addressed to co-workers, and specifically those who work in direct contact with the transitioning employee, announcing the employee’s plan to transition, communicating its values and relevant policies promotes a diverse and harassment-free workplace and can set a positive tone about the transitioning employee.

Help educate co-workers – and others – in the workplace. Other employees may express discomfort with a co-worker’s gender expression. This sense of discomfort might be attributed to a lack of education, grief surrounding the loss of an existing relationship, uncertainty surrounding the future relationship or religious beliefs. Regardless of the source of the discomfort, it’s important for the employer to address those feelings and concerns through education and discussion. The employer should handle concerns based on religious beliefs by referring the employee to human rights legislation and its harassment policy intended to ensure equitable treatment of, and compliance with the employer’s legal obligation to, all employees. Additional education and training around workplace respect can often help co-workers’ understanding and reduce their discomfort around gender diversity.

To discuss this or any other legal issue, contact any member of the Labour & Employment Team @ McInnes Cooper. Read more McInnes Cooper Legal Publications and subscribe to receive those relevant to your business.

McInnes Cooper prepared this article for information; it is not legal advice.  Consult McInnes Cooper before acting on it. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2017.  All rights reserved.

About the authors:

Ryan Baxter is a member of McInnes Cooper’s Labour and Employment Team and regularly advises and represents clients in all manner of employment matters, including human rights compliance and complaints. You can reach Ryan at ryan.baxter@mcinnescooper.com.

Leah Kutcher is a member of McInnes Cooper’s Labour and Employment and Education Law Team and regularly advises and represents clients in all manner of labour and employment matters, including terminations, human rights, and OHS matters.  She has represented clients before the Nova Scotia Supreme Court, Court of Appeal and in numerous Labour Arbitrations.  You can reach Leah at leah.kutcher@mcinnescooper.com