Client Update: Time to Update Workplace Policies in PEI

The Prince Edward Island (“PEI”) legislature has proposed changes to the PEI Human Rights Act to add “gender expression” and “gender identity” as new protected grounds of discrimination. First introduced on November 13, 2013 the bill unanimously progressed through the second reading and report stage on November 27, 2013. The amendment, if passed, follows other provinces in addressing this issue including Ontario, Nova Scotia, Manitoba and the Northwest Territories. The wording that has been proposed in PEI mirrors the broad approach taken in Ontario and Nova Scotia where “gender expression and gender identity” were included as prohibited grounds for discrimination in 2012. Although the Legislature has not indicated any plans for proclamation, we are now predicting it will become effective before the end of 2013.

Although the terms are not defined in the proposed amendment, if the legislation is passed the PEI Human Rights Commission will likely look to policies and decisions from those jurisdictions where the protection is already in place. The Ontario Human Rights Commission, for example, expects it will cover transgender, transsexual, intersex persons, cross-dressers, and others who in whatever way express gender different than their birth sex.

It is difficult to predict how broadly the terms will be considered if the legislation is passed. However, legally speaking, the changes may not be significant. The PEI Act currently protects against discrimination on the basis of “sex”; which has been interpreted by decision makers as covering gender identity and gender expression. This essentially means that employers, landlords, and service providers in PEI are already prohibited from discriminating against this group. However, practically speaking, the changes are likely to draw attention to the issue and increase the likelihood that people will understand the protection, and may be more likely to make complaints or look for accommodation.

Workplace Examples
What does discrimination and accommodation look like for this ground in the workplace?

• You hire an employee; they begin coming to work in clothes typically worn by the opposite sex. You want to react but people who cross-dress, for important personal reasons, have protection and cannot be terminated or have their job responsibilities changed because that would be discrimination. You must accept their choice to dress as the opposite sex.
• You have an employee who is intersex (meaning, people cannot easily distinguish their sex based on how they look) it comes to your attention that employees are making rude comments and making inappropriate jokes about their co-worker. Human Resources should look into the situation, and take appropriate steps to end the behaviour. Otherwise, the company could face a human rights complaint for allowing a poisoned work environment.
• One of your employees is a trans-woman (meaning, she was born as a male, but identifies as a woman) and tells you she wants to use the female staff washroom, but it is making other employees uncomfortable. It would be discrimination to tell her she must use the male washroom. You are not permitted to make decisions based on attitudes around transsexuals, so education will be key to ensuring a smooth transition when you announce a policy that trans-employees are permitted to use the washroom of their choice.

What does this mean?
Changes are currently only proposed, but employers should be proactively reviewing policies (i.e., dress codes) and practices (i.e., gender neutral washrooms) for gender stereotypes and issues to ensure that, as this issue moves forward in the legislature, managers and human resource professionals are not caught off guard by issues that might come up relating to this proposed new ground. Depending on your organization, it may even mean creating a gender policy to have in place before any issues come up. Having a policy in place that is clearly communicated to the workplace and that includes diversity training on gender identity issues could be critical for avoiding problems in the future.

The foregoing is intended for general information only and is not intended as legal advice. If you have any questions, visit our Labour & Employment Group . For more on our firm see www.stewartmckelvey.com