Employer Who Fails to Understand the Reality of Gender Transition (Gender Identity) Found to have Discriminated

Posted: December 29, 2013 in Duty to Accommodate, gender identity, Human Rights Tribunal of Ontario
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Vanderputten was hired by Seydaco Packaging Corp. as a general labourer in 2003. After working for Seydaco for a number of years, Vanderputten was accepted into the gender identity clinic at CAMH and began her transition from living as a man to living as a woman. Vanderputten later changed her first name to Maria, underwent hormone treatment followed by genital reconstruction surgery.

As Maria was transitioning, her coworkers took notice, and she was subjected to harassment in the workplace. Employees at Seydaco changed into work uniforms prior to the start of their shift. Maria asked management to modify her shift hours so she could change privately, without her male colleagues present, who would often make inappropriate comments to her. Seydaco refused her request. The Tribunal stated at paragraph 70:

Seydaco failed to consider, explore, or implement any solutions that would have allowed the applicant privacy while changing, despite the fact that she told them about the problems she was experiencing…

At the very least this amounts to a violation of the procedural component of the duty to accommodate. In a 47,000 square foot plant, it’s highly unlikely Seydaco could not have arranged for Maria to change, away from her male colleagues. Seydaco failed to understand Maria’s reality. It insisted that Maria would be treated as male until her transition was completed and she was able to provide medical verification that she was female. Associate Chair David A. Wright, as he then was, found that Seydaco had discriminated against Maria, stating at paragraph 66:

Insisting that the applicant be treated in the same manner as men until her transition was fully complete was discrimination. It failed to take into account the applicant’s needs and identity. The insistence that a person be treated in accordance with the gender assigned at birth for all employment purposes is discrimination because it fails to treat that person in accordance with their lived and felt gender identity. For non-transferred people, their identity will reflect the sex assigned at birth based on their genitals. However, for transferred people, insisting on their treatment in accordance with their birth gender for all purposes is discriminatory because it fails to take into account their lived gender identity.

The Tribunal ordered that Seydaco pay $22,000.00 in general damages to Maria, lost wages for a period of 8 months, and further ordered that Seydaco obtain an expert, at its own expense, to develop and implement a human rights policy, as well as train all management employees on how to administer the policy. In determining the appropriate length to award lost wages for, the Tribunal stated at paragraph 93:

In deciding how long lost wages should in order to put the applicant in the position she would have been had the discrimination not occurred, I take into account the fact that she had a discipline record that may have led to further discipline unconnected with prohibited grounds, the applicant’s seven years of services (with a brief gap), the notorious fact that in 2010 the economy was experiencing a downturn, and the fact that at the time she was dismissed she was undergoing the process of sex reassignment, which would have made finding a job harder, given general prejudice in society against transgendered persons.

Associate Chair Wright recognized, quite correctly, that discriminatory attitudes at large impact Trans persons’ ability to obtain alternative employment. The length of time that Maria would be provided lost wages for was increased due to this troubling reality. As Trans issues gain popularity and more cases make their way before courts and tribunals, we can only hope that employers will deal with issues that may arise respectfully and sensitively, ensuring that all employees in Ontario are able to work safely and with dignity, regardless of gender identity. In the meantime, until discriminatory attitudes are eliminated, the HRTO should continue to deal harshly with ignorant and insensitive employers.

CASE CITE: Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977

Comments
  1. Stacia Divine says:

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