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Transgendered employees and sexual harassment

Accommodating transgendered employees may be more complicated but they’re still entitled to a workplace free of harassment and discrimination

By Jeffrey R. Smith

Employers must always be alert to the possibility of sexual harassment and be prepared to act if it occurs.

Whether it’s male employees harassing females or vice-versa, harassment can create a work environment that can be damaging to the harassed employee, and possibly the employer’s business. The employer’s obligation to protect its employees from such harassment still exists even if there’s some confusion over the sex of the harassed employee.

An Ontario employer faced such a situation a few years ago when a male worker started transitioning into living as a female. The worker began hormone treatments with the goal of having a sex change and started dressing as a female. The workplace was an industrial plant environment, and the worker’s transition drew quite a bit of attention.

The worker made some requests of the employer, such as using the women’s instead of the men’s washroom and changing her shift times so she could change into work clothes alone and avoid harassment from male employees. The employer refused, saying it would treat the worker as a man until she actually had a sex change and could provide proof she was a woman.

The worker also complained about harassing comments, but when the manager asked other employees about them, it usually accepted the others’ denials and explanations. Part of the reason was the worker had been disciplined on multiple occasions for misconduct such as verbally insulting co-workers and throwing things in the plant. When the worker began her transition, she also asked female co-workers about personal physical issues.

The Ontario Human Rights Tribunal found the employer’s managers were doing what they thought was appropriate by treating the worker as a man until her sex change, but they didn’t really try to inform themselves about transgendered persons.

They also failed to adequately investigate the worker’s complaints, which was an obligation regardless of the worker’s disciplinary history. In addition, the employee’s eventual termination was in part because she was fired for aggressive behaviour in the workplace, which was in part a response to harassing comments from co-workers. Even employees who are guilty of misconduct and inappropriate behaviour in the workplace are entitled to a harassment-free workplace, said the tribunal in awarding damages for discrimination.

This case shows how complicated circumstances can get with sexual harassment claims. Awareness of the rights of transgendered persons is increasing and employers who find themselves with transgendered employees can find things a little more complex when it comes to harassment and accommodation.

If a transgender employee start the transition, how should an employer handle it? Should the employee immediately be treated as the gender being transitioned to? The employer in the above case got in trouble for not immediately treating the worker as a female. Treading cautiously and erring on the side of caution is always advisable.

One thing that was the same in the above case as in all sexual harassment cases was that employers must properly act on and investigate complaints. A failure to do so will get them in hot water, whether the employee is male, female or in flux.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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