supporting people of trans experience in the...
TRANSCRIPT
Karen M. Sargeant
+1 416 868 3475
Nicole Singh
+1 416 868 3481
Dale Hewat
Mediator & Arbitrator
Supporting People of Trans Experience in the Workplace
Labour, Employment and Human Rights Seminar
June 13, 2018
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June 13, 2018
Karen Sargeant, Partner, FaskenNicole Singh, Associate, FaskenDale Hewat, Mediator & Arbitrator
Supporting People of Trans Experience in the Workplace
Agenda
• A mother’s story • The legislative landscape• Gender identity and gender expression• Employer responsibilities• Transitioning employee’s workplace needs• Designing a transition plan
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A mother’s story of supporting her child in transition
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Supporting Jaime
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Legislative Landscape
Legal Protection
• The Canadian Human Rights Act was amended by Bill C-16, 2016, royal assent June 19, 2017• Added Gender Identity or Expression as a prohibited
ground of discrimination• Illegal to deny services, employment, accommodation
and similar benefits to individuals based on their gender identity or gender expression
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Legal Protection• The Ontario Human Rights Code prohibits
discrimination and harassment• On basis of Gender Identity and Gender Expression
or Sex in:• Accommodation (housing)• Membership in unions, trade or professional associations• Employment• Goods, services and facilities• Contracts
Ontario Gender Identity Policy
• Recognize and respect all transgender and non-binary people in Ontario
• Give all Ontarians access to identification that matches their gender identity
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Ontario Gender Identity Policy
• With supporting documents may request a change to your sex designation: • F or • M or • X (Trans, Non-Binary, Two-Spirit, and Binary people
who don’t want to disclose their gender identity)
Understanding Gender Identity and Gender Expression
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Cisgender
• A cisgender person’s gender identity aligns with their gender assigned at birth – regardless of their sexual orientation
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Transgender
• When a person’s gender identity is not the same as their assigned sex at birth, they may be referred to as transgender (or “trans”)
• Being transgender only relates to which gender a person identifies and not their sexual orientation
Gender Non-conforming
• Individuals who do not follow gender stereotypes based on the sex they were assigned at birth and may or may not identify as trans
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Responsibilities of an Employer
How to Support Employees of Trans Experience
Accommodation
• Obligation to accommodate• Up to the point of undue hardship
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To ensure compliance with the Code:
• No discrimination in:• Hiring• Training• Compensation • Advancement• Terminationbecause employees transition or “come out”
Access
• During and after transition, access to appropriate: • Washrooms• Uniforms• Dress code
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Benefits
• Cooperate and change records for pension coverage, medical and health plans, EI, CPP, etc. to reflect trans employee’s new gender identity
• Provide access to private health care benefits that are available to other members with other medical needs - wigs
Dignity
• Be respectful of privacy and confidentiality• Encourage a respectful work environment• Lead by example • Offer educational support to the employee’s
team• Consult and collaborate with union reps, if
applicable
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What does a transitioning employee need in the workplace?
Transitioning
• The process of changing: • from one sex to another• from one gender role to another
• May involve: • Hormone therapy • Living according to gender identity – not biology• Sometimes (but not always) surgery
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Transitioning
• No single or correct way to be trans• No single or correct way to transition• The process is personal• The process can change
Transitioning
• Transition is a long process• For many trans persons, the workplace is the
last place where they exhibit their true gender• The most critical time to support a worker in
transition is at the very beginning stages of their transition
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The Transition Plan
• As soon as a worker outlines their plan to transition, they need workplace support
• It is an employer’s legal obligation to provide such support, in the form of accommodation
• So what does that look like?
Names and Pronouns
• Trans worker’s name(s) and pronoun(s) should be used in ways that they have requested
• They should be used in all communication records (except where records must match a person’s legal name)
• At a worker’s request, workplace records must be updated to reflect the worker’s new name
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Names and PronounsMay include changes to:
• Organization charts• Schedules• E-mail • Phone directories
• Office signage• ID cards or badges• Insurance records• Pension records
Names and Pronouns
• Change documents in your sole custody immediately
• Do not demand that other pieces of ID be changed first • unless there is a direct link between personnel and
government records
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Washrooms and Change Rooms
• Trans workers, like everyone else, need to use washroom facilities with safety and dignity
• It is an employer’s responsibility to provide safe washroom facilities to the worker during and after transition
Washrooms and Change Rooms• A transitioning worker has the right to use the
facilities of their social gender, whether or not they have completed or sought surgery • Washrooms• Change rooms
• Accommodations may be made where facilities do not have separate privacy stalls
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Uniforms and Dress Codes
• A worker in transition must be permitted to dress consistently with their gender identity
• The same standards of dress/appearance as any other worker apply
Uniforms and Dress Codes
• Allow some flexibility in dress code to accommodate the process of transition
• If uniforms are gendered – provide the worker with the choice of which uniforms to wear
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Benefits and Medical Coverage
• Transitioning workers may require medical coverage for: • Hormone therapy• Wigs• Counselling/psychologists• Gender reassignment surgeries
Benefits and Medical Coverage
• Transition-related health care needs are not cosmetic
• Many benefit plans already provide some of this coverage – ensure no discrimination in access to these benefits
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Privacy• Trans workers have the right to privacy• Ensure no unnecessary disclosure of medical
information• Obtain explicit permission before referring to a
person’s trans status • Otherwise you are “outing” the employee• A form of harassment that may put the worker’s
safety at risk
Privacy• Transition plans should be discussed and
communicated only to: • Manage expectations • Minimize inappropriate responses
• There is no general need or obligation to inform everyone in the workplace that a worker is undergoing reassignment surgery, for example
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Designing a Transition Plan
When and How to Share Information in the Workplace
Transition Plan
• The employee should decide when they are ready to inform people at work about their transition
• A successful transition at work will depend on a close collaboration between the employee and employer
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Transition Plan
• The employee is the best resource for information to develop a plan
• A transition plan should include: • when, how and if • a worker plans to communicate their new gender to:
• co-workers• supervisors • customers
To Whom and How?
• Communication plan should be developed by employer and employee
• Consider the size and type of workplace• Keep in mind - not all workers in a large
workplace need to be notified of a worker’s transition
• No one entitled to detailed medical information
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When?
• During transition, common for some trans persons to take some time off work
• Basic information may be provided to co-workers a few days before the worker returns so that co-workers have some time to adjust
Follow-up
• Following an employee’s transition, monitor the work environment to ensure no issues
• Should issues arise, address them immediately• The goal? A return to work that gives the
employee • a feeling of respect; and • confidence in their future in the workplace
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Karen Sargeant• Partner• +1 416 868 3475• [email protected]
Nicole Singh• Associate• +1 416 868 3481• [email protected]
Dale Hewat• Mediator and Arbitrator
Notes
Notes
Notes
Notes
Guest Biography
Dale Hewat is a labour arbitrator and employment law mediator and workplace
facilitator. She is also an arbitrator at the Grievance Settlement Board of Ontario. Since
2008, she has worked as a Part-time Member of the Human Rights Tribunal of Ontario
gaining extensive experience adjudicating and mediating employment related human
rights applications. Dale has also served as a Vice-Chair of the Ontario Labour
Relations Board.
Between 1990-1995, Dale was employed as General Counsel for Humber College
advising on labour relations matters and representing the College at arbitration
hearings. Prior to Humber College, Dale worked as a lawyer in private practice
specializing in employment and labour law.
Dale Hewat
Mediator & Arbitrator
http://www.dalehewat.com/
Biographies
Karen M. Sargeant PARTNER CHAIR, ONTARIO LABOUR, EMPLOYMENT AND HUMAN RIGHTS GROUP
Toronto
+1 416 868 3475
https://www.fasken.com/Karen-Sargeant
Areas of Practice
Collective Bargaining | Labour Relations and Collective
Bargaining | Workplace Equity | Labour, Employment &
Human Rights | Employment Advice and Litigation | Labour
Mergers and Acquisitions | Occupational Health and Safety
and Workers Compensation | Human Rights | Employment
Standards
Industries
Health | Transportation | Aviation
Education 1995, LLB, University of Toronto
1992, B Comm (Hons), University of British Columbia
Year of Call/Admission Ontario, 1997
British Columbia, 1996
Languages English
Karen Sargeant is the Chair of Fasken’s Ontario Labour, Employment and Human Rights Group. She has practiced
management-side labour and employment law exclusively for more than 20 years.
Karen frequently appears before arbitrators, the Ontario Labour Relations Board, the Canada Industrial Relations
Board, the Ontario Ministry of Labour Employment Practices Branch, the Human Rights Tribunal of Ontario and the
Canadian Human Rights Tribunal. She has many winning decisions from all of these administrative bodies, for clients
like Air Canada, Gate Gourmet Canada Inc., Humber River Hospital, Sunnybrook Health Sciences Centre and Nestle
Purina PetCare.
Karen fiercely represents her clients’ interests, without compromising her professionalism and ethics. Although she is
a fierce advocate, she also knows when to pursue settlement at an appropriate stage in a proceeding. At the
appropriate time, and when appropriate for our client’s interests, she engages in negotiations with an objective of
agreement.
In addition to her appearance work, Karen provides clients with exceptionally high quality day-to-day legal advice.
She presents an accurate picture of outcomes to clients and provides practical solutions to clients’ workplace
problems. In this way, she knows clients’ workplaces and has an active interest in resolving their employment issues.
Karen regularly lectures and teaches at conferences and to groups of management employees on employment and
labour matters. She is also a frequent writer and was a founding editor of Fasken’s weekly bulletin, HR Space.
Rankings and Awards
The Best Lawyers in Canada 2015-2018 for Labour and Employment Law
Canadian Legal Lexpert Directory 2015-2017 for Employment Law
Chambers Canada 2016 and 2017 for Employment and Labour: Ontario
Recognized as an Acritas Star™ Lawyer 2016
Nicole Singh ASSOCIATE
Toronto
+1 416 868 3481
https://www.fasken.com/Nicole-Singh
Areas of Practice
Labour, Employment & Human Rights
Education 2013, JD, University of Ottawa
2009, BA (Hons), York University
Year of Call/Admission Ontario, 2014
Languages English
Nicole Singh has a broad labour and employment practice. She regularly advises public and private sector employers
on a wide range of issues, including labour disputes, grievance arbitrations, human rights and accommodation,
employment standards, employment contracts and terminations, collective agreement interpretation, and wrongful
dismissals. Nicole has represented clients before arbitrators, courts, the Ontario Labour Relations Board and the
Ontario Human Rights Tribunal.
Nicole has specialized experience in the health care sector. She spent over a year at a large acute care hospital
where she managed the hospital’s labour and employment litigation, and provided day-to-day legal advice to the
hospital’s human resources department.
In addition to her practice, Nicole also acts as Duty Counsel for the Pro Bono Law Ontario Duty Counsel Project, and
is a volunteer lawyer for the Pro Bono Law Ontario Child Advocacy Project.
