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Gender identity and gender expression in employment: Vanderputten v. Seydaco Packaging Corp.

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Sambrano Legal Paralegal Human rights Toronto

On June 19, 2012 the Human Rights Code (Ontario) was amended adding two new protected grounds of discrimination, namely “gender identity” and “gender expression”. The first interpretation of these new grounds was examined in the Human Rights Tribunal decision in Vanderputten v. Seydaco Packaging Corp.

The applicant, Maria A. Vanderputten, had worked for the corporate respondent, Seydaco Packaging Corp., for a number of years as a male. Ms. Vanderputten worked in the plant which manufactured folding cartons and boxes. Ms. Vanderputten alleged that when she began the transition from living as a man to living as a woman, she was subjected to harassment, a poisoned work environment and eventually dismissed in violation of ss. 5(1) and (2) of the . The corporate respondent denied such allegations, alleging that her dismissal was solely due to her attitude, involvement in workplace conflicts that were her fault, and insubordination.[1]

During the Hearing, Ms. Vanderputten testified that she was forthcoming in her requests of management to accommodate her sex reassignment. Such examples included her request to eventually be allowed to use the women’s washroom, as well as to change in the women’s change room rather than in the men’s change room. She further testified she had asked management to modify her shift time so as to avoid comments and harassment from male employees while changing. Ms. Vanderputten also complained to management that she was being called such terms as “faggot” and “fruitcake” by her co-workers.

Ms. Vanderputten alleged that her requests for accommodation were effectively ignored by her employer as they took the position that proof was needed, through medical or legal evidence, that Ms. Vanderputten was a woman. She was told that once such proof was supplied, then Ms. Vanderputten’s accommodations would be considered.

Under the “Code” employers have a legal duty to accommodate people because of their gender identity. The Ontario Human Rights Commission states that the goal of accommodation is to allow people to equally benefit from and take part in services, housing or the workplace. While the employer took the position that proof of “gender” was needed in order to accommodate Ms. Vanderputten, the Tribunal took a very different position.

Although the applicant admitted to times when her own conduct was inappropriate, her conduct did not provide a reasonable defense for the corporate respondent. The Adjudicator stated that the right to freedom from discrimination in the “Code” also includes an obligation to reasonably investigate and address complaints of discrimination and harassment.

In the Tribunal’s decision, the Adjudicator stated that accommodation must be based on the individual, how they identify themselves. He referenced the Ontario Human Rights Commission Policy which states gender identity is linked to an individual’s intrinsic sense of self and, particularly the sense of being male or female. [2]  The Adjudicator concluded that insisting the applicant be treated in the same manner as men until her transition was fully complete was discrimination, as it failed to take into account the applicant’s needs for identity.” [3]  Further, the employer discriminated against Ms. Vanderputten and contributed to the poisoned work environment through its “failure to insure a safe work environment and to respond reasonably and adequately to the applicant’s complaint of harassment based on sex.”[4]

As a result of the employer’s conduct, Ms. Vanderputten was awarded $22,000 in damages for injury to her dignity, feelings and self-respect. She was also awarded 8 months worth of lost wages. The Tribunal has the power to grant public interest remedies, as such, the employer was ordered to develop a formal human rights policy, an anti-harassment policy, and to undergo human rights training.

The takeaway is this: it is incumbent upon employers to continually self-educate in the areas of employment and human rights law, while paying particular attention to their responsibilities of accommodation and safety for all their employees.

Kevin Sambrano is a human rights paralegal practicing in Toronto. Do you have a human rights issue Kevin can help you with? Contact Sambrano Legal today at 647 860 8339 or through the contact link for a free consultation. Or you may visit www.sambranolegal.com

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[1] Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977(CanLII). Para. 1

[2] Ontario Human Rights Commission Policy on discrimination and harassment because of gender identity p. 6

[3] Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977(CanLII). at para. 66.

[4] Ibid., at para. 72

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