Employer insisted on treating worker transitioning to female as a man until sex change was complete
An Ontario company and one of its employees must pay $22,000 plus eight months’ back pay for the harassment and wrongful dismissal of an employee who was transitioning from a male to a female, the Ontario Human Rights Tribunal has ruled.
Marie Vanderputten worked for Seydaco Packing Corp., a manufacturer of folding cartons and boxes in Mississauga, Ont., as a general labourer. She was hired in August 2003, at which time she lived as a man and went by the name of Tony.
Vanderputten was sometimes 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 actually fired but was rehired 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. She was also cited for attendance issues and listening to a portable music player with both earphones, contrary to company policy.
Male worker began living as a woman
In 2008, Vanderputten began preparing for sex reassignment surgery, so she took hormones and began dressing as a woman. Seydaco plant employees wore gender-neutral jumpsuits they changed into at work and Vanderputten wore women’s clothes and makeup before changing. She requested permission to wear open-toed shoes and skirts but this was refused for safety reasons.
Vanderputten didn’t advise Seydaco of her transition or request any modifications initially, and the employer only became aware of it when Vanderputten began wearing women’s clothing to work in 2008. 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, but Seydaco reiterated that it considered her a man until she had the sex change and could prove she was female. She was told the same with regards to the change room.
Vanderputten asked the plant manager to modify her shift so she could change alone without male employees around. She later testified many co-workers called her names and posted notes and comments about her on the bulletin board. The plant manager denied being told of specific incidents but called a general meeting to say that kind of behaviour was unacceptable. Afterwards, employees were 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 that Vanderputten’s problems with anger management escalated such situations. Management felt much of what Vanderputten complained about as harassment stemmed from incidents she caused. This was aggravated by her refusal to stick to doing the jobs she was assigned and making co-workers uncomfortable by asking about “female issues.” The plant manager testified he received many complaints from other employees about her, which resulted in Vanderputten receiving a letter of reprimand on Feb. 4, 2010, about her “verbal harassment” of other employees.
Dismissal following altercation at work
On May 4, 2010, Vanderputten dropped a skid while cleaning up — which wasn’t part of her assignment — and a co-worker called her a vulgar name followed by an insult related to her gender transition. The co-worker claimed Vanderputten threw the skid and it was she who used the derogatory term.
Vanderputten reported the incident and both workers were suspended. The co-worker was reprimanded and Vanderputten’s employment was terminated for not following orders to do her job and aggressive behaviour. Vanderputten 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 complainted about harassment. Given the “extremely vulnerable position and general prejudice” faced by transgendered people, the tribunal found the failure to accept Vanderputten’s accounts as truthful was at least in part due to the fact she identified as a transgendered person. This was also the case in the culminating 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, said the tribunal.
The tribunal also found 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. Since this harassment and environment was based on her gender identity and expression — which are now protected under the Ontario Human Rights Code — it constituted prohibited discrimination. And since the culminating incident that led to Vanderputten’s dismissal involved discrimination based on her sexual identity, it played a part in her dismissal, said the tribunal.
The tribunal noted Vanderputten had problems with following directions and controlling her anger, resulting in several instances of discipline that “appear 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,” said the tribunal.
