Harassment of transgendered worker costs company (Legal View)

Employer insisted on treating transitioning worker as a man until sex reassignment surgery was complete
By By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 07/14/2013

An Ontario company and one of its employees has been ordered to pay $22,000 plus eight months’ back pay by the Ontario Human Rights Tribunal for the harassment and wrongful dismissal of an employee who was transitioning from a male to a female.

Marie Vanderputten worked as a general labourer at Seydaco Packing, a manufacturer of cartons and boxes in Mississauga, Ont. Vanderputten was hired in August 2003, at which time she lived as a man and went by the name of Tony.

Vanderputten sometimes became angry at work and was disciplined for misconduct such as making a racial remark to a co-worker, throwing product and failing to control her anger. In February 2006, she was fired — but was rehired soon after when she asked for her job back. However, more discipline followed, including a one-week suspension for throwing a piece of wood and swearing at a co-worker.

In 2008, Vanderputten began preparing for sex reassignment surgery. She started taking hormone treatments and dressed as a woman. Seydaco plant employees wore gender-neutral jumpsuits, but changed into the jumpsuits at work and Vanderputten wore women’s clothes and makeup before changing.

Initially, Vanderputten didn’t advise Seydaco of her transition or request any modifications, and the employer only became aware of it in 2008 when Vanderputten began wearing women’s clothing to work. The company indicated gender didn’t matter as long as the employee was doing her job, and said it would consider Vanderputten a male until there was legal or medical documentation showing otherwise.

Vanderputten said she wanted to start using the women’s washroom and change room so other employees would “get used to the idea,” but Seydaco reiterated that it would consider her a man until she had the sex change and could prove she was female.

Vanderputten asked the plant manager to modify her shift times so she could change alone without male employees around, as she said they made various comments. She later testified many co-workers called her names and posted comments about her on the bulletin board. The manager denied being told of specific incidents but called a meeting to say that kind of behaviour was unacceptable. Afterwards, each employee was required to sign a code of conduct and ethics that included a prohibition of discrimination “for racial, sexual or religious reasons.”

Seydaco was also concerned Vanderputten’s problems with anger management escalated these situations. Management felt much of her harassment complaints stemmed from incidents she caused. This was aggravated by her refusal to do her assigned jobs and making co-workers uncomfortable by asking about “female issues.”

The plant manager testified he received many complaints from other employees about Vanderputten, which resulted in Vanderputten receiving a letter of reprimand on Feb. 4, 2010, about her “verbal harassment” of other employees.

Dismissal following altercation

On May 4, 2010, Vanderputten dropped a skid while cleaning up — which wasn’t part of her assignment that day — and a co-worker called her a vulgar name followed by a discriminatory name related to her gender transition.

The co-worker claimed she threw the skid and it was Vanderputten who used the derogatory term. Vanderputten reported the incident and both were suspended. The co-worker was reprimanded for calling Vanderputten a vulgar name and Vanderputten’s employment was terminated for not following orders to do her job and aggressive behaviour. She filed a human rights complaint for harassment, a poisoned work environment and a discriminatory dismissal.

The tribunal found Seydaco management consistently gave “little or no consideration” of Vanderputten’s perspective when she complained about harassment and heard the other side’s point of view. Given the “extremely vulnerable position and general prejudice in society that transgendered persons face,” the failure to accept Vanderputten’s accounts as truthful was partly because she identified as a transgendered person, found the tribunal.

This was also the case in the dropped skid incident, where it was more likely the co-worker used the discriminatory term towards Vanderputten since it had been used by others around the workplace, it said.

Being subjected to harassing comments about her gender identity, Seydaco’s insistence she be treated as a man until she provided proof of her sex change, and the company’s failure to investigate and respond reasonably to her complaints created a poisoned work environment for Vanderputten, said the tribunal.

Since this harassment and poisoned work environment were based on Vanderputten’s gender identity and expression — which are protected under the Ontario Human Rights Code — they constituted prohibited discrimination. And since the incident that led to Vanderputten’s dismissal involved discrimination, discrimination based on her sexual identity played a part in her dismissal, said the tribunal.

“The insistence that a person be treated in accordance with the gender assigned at birth for all employment purposes is discrimination because it fails to treat that person in accordance with (her) lived and felt gender identity.”

The tribunal noted that Vanderputten had problems with following directions and anger, and this resulted in discipline that “appears to have been warranted.” However, some of it was likely a reaction to her work environment, and workplace misconduct is not a justification for harassment and discrimination, said the tribunal.

“Even those who are not model employees or who have acted inappropriately themselves are entitled to a harassment-free workplace.”

Seydaco was ordered to pay Vanderputten $22,000 for injury to dignity, feelings and self-respect, with the co-worker involved in the altercation jointly liable for $1,000 of it. Seydaco was also ordered to pay her eight months’ salary and implement a human rights policy.

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.

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