Creating a safe and inclusive workplace for all employees, particularly those who identify with the 2SLGBTQI+ community. Employers must be aware of the impact that harassment and discrimination can have on an employee’s health, morale, and productivity.
The Ontario Human Rights Code outlines various protections in place for 2SLGBTQI+ employees, along with actions that both employers and employees can take to ensure that the workplace is equally safe for all. Employers should be aware of what constitutes discrimination and harassment in the workplace against any employee. It is equally important for employees to understand their rights under the Ontario Human Rights Code so that they may seek help if necessary.
The Ontario Human Rights Code Protects Gender Expression and Identity
Ontario’s Human Rights Code (the “Code”) protects employees from harassment and discrimination in the workplace. The protection specifically applies to several grounds listed within the legislation. Section 5 of the Code lists the following grounds of workplace human rights protection:
“5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.”
Both “gender identity” and “gender expression” were added to the Code in 2012. According to the Ontario Human Rights Commission policy on preventing discrimination because of gender identity and gender expression, gender identity is defined as an individual’s internal experience of their gender, which may not correspond with the sex that was assigned at birth.
Gender expression refers to the way in which an individual chooses to present their gender publicly. Personal expression may be shown through clothing choices, mannerisms, speech patterns and social interactions with others. A person’s choice to dress in stereotypically masculine or feminine ways does not necessarily indicate their sexual orientation. Those whose gender expression differs from more stereotypical norms may identify as transgender.
Understanding Discrimination and Harassment
When anyone experiences discrimination and/or harassment in the workplace, it is important to take immediate action. What may seem like a playful joke to one person can poison a workplace, making it unsafe for the affected individuals. Employers must take an active role in upholding the Ontario Human Rights Code at all times, even in employee-to-employee interactions.
The Ontario Human Rights Code defines discrimination as any action that adversely affects the employment or employment opportunities of a person because of one or more identified grounds above. Harassment is defined as “engaging in a course of vexatious comment or conduct against a worker that is known or ought reasonably to be known to be unwelcome.”
There are also specific provisions relating to sexual harassment, including sexual solicitation, making lewd comments about body parts, displaying pornographic images, and making offensive jokes.
What Does Discrimination and Harassment Look Like?
Employers must be aware that their own actions may constitute discrimination against employees due to their sexual orientation, gender identity, or gender expression. Examples of an employer’s discriminatory actions might include:
- refusing to hire someone,
- preventing an individual from being promoted, or
- denying benefits or giving negative performance reviews.
Harassment is any unwanted behaviour that makes another person feel uncomfortable or vulnerable. Examples of harassment may include:
- asking personal questions about an employee’s sexual orientation or gender identity,
- making jokes about homosexuality, or
- consistently misgendering an employee despite knowing their preferred pronouns.
Employers Must Take Action to Improve the Workplace
Increased awareness of workplace harassment and discrimination, specifically the issues affecting the 2SLGBTQI+ community, can help foster greater understanding and inclusion in the workplace.
Employers and employees should consider participating in additional education or training to understand the complex issues faced by the 2SLGBTQI+ community. Employers may also revise and implement workplace policies to formalize their expectations and consequences regarding discrimination and harassment to ensure that the workplace remains a safe environment for everyone.
What Should Employees Do if They Experience or Witness Discrimination or Harassment in the Workplace?
If any employee experiences discrimination or harassment in the workplace, particularly based on their sexual orientation, gender identity or gender expression, it is important to know what steps to take and to act quickly. If an employee witnesses discrimination or harassment of another employee in the workplace, there are different steps which can be taken to address the incident.
Reporting the incident to Human Resources at your company or organization is a helpful first step to take. However, if an employee feels that the workplace does not cultivate a safe space to report the issue directly, they may request support from a co-worker to report the situation on their behalf.
Alternatively, a claim of discrimination may be filed with the Ontario Human Rights Tribunal. The Ontario Human Rights Tribunal resolves complaints with mediation and arbitration. Employees may seek support from the Ontario Human Rights Legal Support Centre, which provides further information on the appropriate steps to take depending on the circumstances of the incident.
Contact Peter A. McSherry Employment Lawyer in Guelph for Advice on Workplace Discrimination and Harassment
At Peter A. McSherry Employment Lawyer, our experienced employment law team frequently advises employees on their rights under Ontario’s employment laws. We help clients resolve workplace disputes as efficiently and amicably as possible. We advocate on behalf of employees before tribunals and in the courtroom when necessary. If you have experienced harassment or discrimination of any kind in the workplace, our team will protect your rights and work to ensure that the workplace is in compliance with the relevant legislation. To schedule a consultation, call us at 519-821-5465 or complete our online form.