Regardless of employment status, every Canadian is entitled to be free from discrimination in all aspects of their daily lives. Discrimination in employment is prohibited in Canada under applicable federal or provincial Human Rights Codes, as freedom from discrimination is considered a human right.

In Ontario, employment discrimination is forbidden on many bases, including age, disability, ethnicity, and gender identity and expression. While many, if not most, Canadians understand what age-based discrimination may include, fewer are familiar with discrimination based on gender identity or gender expression, as these concepts are relatively new for some people. As such, it may be more difficult for people to recognize when they are engaging in or observing discriminatory behaviour on such bases. 

In this blog, we explore the concept of employment discrimination based on gender identity and expression. 

Anonymization of Human Rights Complaints

The complainant in S.R. v DLPH Hambleton Group Inc. (aka Burger King Franchise 3566) alleged that he had been discriminated against in his employment based on his sex, gender identity and gender expression. It should be noted that the complaint itself names the complainant as “SR” rather than by his proper name, as is the usual course. This is because, in exceptional circumstances, the human rights tribunal may anonymize complaints such that only initials or other non-identifying characters are used instead of a person’s actual legal name. Such exceptional circumstances include any situation in which the tribunal is satisfied that the public interest in knowing a complainant’s name is outweighed by the interest in safeguarding the privacy of the party who requests anonymization. 

The Ontario Human Rights Tribunal has previously determined in other decisions that anonymization is appropriate in circumstances in which a person “may suffer stigma as a result of being identified as transgender.” 

As this case included an allegation that the complainant was publicly outed in his workplace as being transgender, the tribunal was satisfied that anonymization was appropriate and thus referenced the complainant as SR throughout all proceedings. 

Complainant Subjected to Unwelcome Comments, Outed at Work as Transgender

Turning to the complaint, the complainant alleged that he began employment with the employer in July 2018. At the complainant’s interview for his position with the employer, he advised the employer that he is a transgendered man who uses him/he pronouns to refer to himself. The complainant’s coworkers recognized his gender as male and consistently referred to him by his chosen name without difficulty. However, the same could not be said of the complainant’s general manager and assistant, who persisted in frequent misgendering of the complainant. When the assistant manager and general manager were corrected, they tended to laugh off their error or excuse it away as a minor misstep. 

The complainant voluntarily resigned from his position with the employer in November of 2018 to undergo gender-affirming surgery for which he would require significant recovery time. However, he expressed his desire to return to work for the employer following his recovery, should the employer be amenable to such an arrangement. 

In January 2019, the complainant reapplied for work at the employer, was rehired and promoted to shift supervisor. Unfortunately, the general and assistant managers of the employer continued to misgender the complainant after his return to work. In April 2019, the assistant manager advised the complainant, “You’ll always be a girl to me,” and indicated that they had known one another for a long time before the complainant’s gender transition; it was difficult to adjust to the use of the correct name and pronouns. The complainant made a written complaint about this incident to upper management, who held a disciplinary meeting with the assistant manager and made all of the staff re-sign the employer’s discrimination policy to acknowledge that they had read and understood same.

Several days later, the general manager posted information she had found on the internet about gender dysphoria on the door to the staff room and also on the door to the men’s staff washroom. The sign included a statement about how the employer did not countenance discrimination against people who suffered from gender dysphoria. Thus, all staff should sign the notice to indicate that the signee would not commit any act of discrimination against the complainant. In so doing, the general manager effectively outed the complainant as transgender to all of his coworkers, many of whom were unaware of his status as a transgender man. When the general manager refused to remove the sign, the complainant did so himself. 

In the days following the posting of the sign, the complainant endured many unwelcome comments from his coworkers about how he was seeking special treatment and attention through his transition. The complainant no longer felt safe or welcomed in his employment setting, so he resigned approximately one week after the sign-posting incident. The complainant then commenced this complaint, alleging discrimination in his employment based on his gender identity and gender expression.

How to Prove Discrimination Before the Human Rights Tribunal

Section 5 of Ontario’s Human Rights Code dictates that every employee is entitled to be free from discrimination in their workplace based on, amongst other things, sex, gender identity and gender expression. To be successful in a complaint before the tribunal, the complainant must prove, on a balance of probabilities (i.e., to a certainty of 51 per cent), that they possess one of the protected characteristics listed in section 5 of the Code; that they suffered adverse treatment; and that the protected characteristic possessed by the complainant was a factor in the adverse treatment experienced by the complainant. 

Complainant Entitled to Significant Compensation for Injury to Dignity, Feelings, Self-Respect

In this case, the tribunal was quickly and easily satisfied that the complainant possessed a protected characteristic in that he is transgender and thus is entitled to protection from discrimination based on his gender identity and gender expression. As the complainant had been forced to quit his job because of the harassment and discrimination he had experienced at the hands of the general and assistant managers of the employer, he had certainly proven that he had experienced an adverse event and that such an adverse event was related to his gender identity and/or gender expression. After all, the assistant manager had posted a notice in two separate places in the workplace that included only the complainant’s name in specific relation to discrimination based on gender dysphoria and had effectively outed the complainant to all of his coworkers without his permission or knowledge. In these circumstances, the tribunal was satisfied that the complainant had proven his complaint of discrimination in the workplace based on gender identity and gender expression. 

In addition to the $4,095.85 compensation for lost wages, the tribunal ordered the employer to pay the complainant a further $26,000 for injury to dignity, feelings, and self-respect.  

Toronto Employment Lawyer Assisting with Your Workplace Discrimination Claim

Are you facing workplace discrimination or harassment in Ontario? The Haynes Law Firm provides experienced legal representation to individuals seeking justice. Employment Lawyer Paulette Haynes offers experienced guidance on human rights claims, ensuring your rights are protected and you receive the compensation you deserve.

Contact us today for a confidential consultation. We can help you navigate the complexities of employment law and pursue a successful resolution to your case. Call us at (416) 593-2731 or visit our website to learn how we can assist you.