Workers are Protected from Harassment and Discrimination based On Gender Identity and Expression.

 by Mathew Benoit*

Every person has the right to be free from sexual harassment in the workplace. Ontario’s Human Rights Code states, ” Every employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.”[I]

Likewise, for Federal workplaces, the Canadian Human Rights Act establishes that “It is a discriminatory practice, … (c) in matters related to employment, to harass an individual on a prohibited ground of discrimination”[ii] and clarifies that sexual harassment qualifies as harassment.[iii] The Act also specifies that gender identity and gender expression are prohibited grounds of discrimination.[iv]

Gender-diverse individuals were first included in the Code with the passing of Bill 33[v] and in the Act with the passing of Bill C-16.[vi] Individuals who experience sexual harassment in the workplace can bring an action before the Human Rights Tribunal of Ontario or the Canadian Human Rights Tribunal, depending on their place of employment. If the industry in which an individual works is federally regulated, such as airlines or banks, then the individual files an application with the CHRT. Otherwise, they file with the HRTO. A fuller list of federally regulated industries and workplaces can be found here. To learn more about workplace sexual harassment before the HRTO, see my previous post here.

The question becomes, then, what constitutes sexual harassment towards gender-diverse individuals? Does it differ from sexual harassment towards cisgender individuals? Are there aspects of sexual harassment that affect gender-diverse individuals more frequently than cisgender individuals? While sexual touching, commentary, and solicitation are frequent forms of harassment for both gender-diverse and cisgender individuals, misgendering and deadnaming are far less likely to be directed at cisgender individuals. These actions are sexual harassment and are demeaning to an individual’s dignity. They have no place in the workplace.

In Bilac v. Abbey, Currie and NC Tractor Services Inc., 2023 CHRT 43, the CHRT found an employee of a trucking company and their employer discriminated against their co-worker/employee, Mr. Bilac, by misgendering and deadnaming him, engaging in transphobic comments, and even asking him which bathroom he used (despite there being only one washroom in the workplace).[vii] In that case, the CHRT awarded damages to Mr. Bilac in the amount of $15,000 for pain and suffering ($12,000 against the employer and $3,000 against the co-worker), and $3,000 in special damages.[viii] As special damages are punitive in nature, the Tribunal may choose to award them in cases where the discriminatory conduct is deliberate, whether wilful or reckless.[ix] In this case, the Tribunal awarded damages as the employer, during Mr. Bilac’s employment and the Tribunal process, continuously misgendered and deadnamed Mr. Bilac, which the Tribunal found to be reckless.[x]

Everybody deserves respect in their place of work. As the Tribunal held “Employers should not expect trans employees to conceal their trans identities while at work, or as a condition of work..”[xi] For more information about your legal rights in this regard, please contact us at www.shapeyourworkplace.ca

[i] Human Rights Code, RSO 1990, c H 19 at § 7 (2).

[ii] Canadian Human Rights Act, RSC 1985, c H-6 at § 14 (1) (c) [CHRA].

[iii] Ibid, at § 14 (2).

[iv] Ibid, at § 3 (1).

[v] Bill 33, Toby’s Act (Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression), 2012, 1st Sess, 40th Leg, Ontario, 2012 (assented to 19 June 2012).

[vi] Bill C-15, An Act to amend the Canadian Human Rights Act and the Criminal Code, 1st Sess, 42nd Parl, 2017 (assented to 19 June 2017).

[vii] Bilac v. Abbey, Currie and NC Tractor Services Inc., 2023 CHRT 43 at paras 42-53 [Bilac]

[viii] Ibid, at para 195.

[ix] CHRA at § 53 (3).

[x] Bilac at para 171.

[xi] Ibid, at para 173.

*Matthew Benoit grew up in St. Thomas, Ontario. He received his law degree at the University of Toronto after receiving an HBA and an MA in English at Wilfrid Laurier University and Lakehead University, respectively. He was awarded Lakehead University President’s Award for his academic accomplishment, community service, and contribution to the welfare of the university. His areas of academic interest are comics, Indigenous literature, literary theory, ludonarratives, Medieval and Early Modern literature, and science fiction. His areas of legal interest are administrative, constitutional, and criminal law. He is currently articling at the Northumberland Community Legal Centre and previously summered at the Middlesex County Crown Attorney’s Office. He enjoys academic writing, hiking, gaming, fencing, tennis, and weightlifting.

Disclaimer: This post contains general legal information as of November 20, 2024, that may or may not apply in a particular situation. It is important to note that the law, government policies and available programs can change, and this blog will not be updated to reflect these changes. It is highly recommended to seek legal advice from a lawyer about your particular situation.