Shibley Righton's June 2019 Education Law eBulletin

Canadian jurisdictions have taken a proactive approach to transgender rights in recent years, Windsor employment lawyer Jessica Koper tells AdvocateDaily.com.

Koper, an associate with Shibley Righton LLP, says the federal government recently made up lost ground on most provinces when Parliament passed Bill C-16, which added the terms “gender identity” and “gender expression” to the list of prohibited grounds of discrimination under the Canadian Human Rights Act (CHRA).

The language of the law mirrored provisions added to Ontario's Human Rights Code (HRC) as far back as 2012, she explains. In addition to the CHRA changes, the federal bill also amended the Criminal Code to ensure crimes motivated by a victim's gender identity or gender expression qualify as hate crimes.

“There has been a big movement in terms of transgender rights and protections, and I would describe the changes as more proactive than reactive,” Koper says. “There haven’t been many lawsuits in this area, but there has been a great deal of awareness raised along with policy changes.”

The CHRA first passed in 1977 under then-prime minister Pierre Trudeau's government, protecting Canadians from discrimination on the basis of sexual orientation. Canada later became one of the first countries in the world to legalize same-sex marriage in 2005 when the Civil Marriage Act passed both houses of Parliament during the government led by former prime minister Paul Martin.

“Today the tradition continues,” Justice Minister Jody Wilson-Raybould said in a statement following the introduction of Bill C-16.

“Diversity and inclusion have long been among the values that Canadians embrace, and Canadians expect their government to reflect these values,” she added.

Koper says employers in Ontario should familiarize themselves with the province’s HRC and develop policies that match its requirements.

For example, she says the law provides individual employees with the right to be called by the pronoun and wear required uniforms that match the gender they identify with.

“The provincial government no longer collects information on sex, but according to gender identity,” Koper says. “Employers should follow suit by giving employees the option to identify as male, female, transgender or declining to disclose if they prefer.”

Employers who allow discriminatory behaviour to occur in the workplace are exposing themselves to risk, according to Koper.

“If they are aware, or ought to be, of any bullying or harassment, employers have an obligation to address it, investigate it, and promote a positive environment in that regard,” she says. “Otherwise, they could be on the hook for failing to react to a poisoned workplace environment.”

Even during the hiring process, she says employers should avoid making assumptions about the gender identity or gender expression of candidates.

“Comments made during interviews could lead to possible claims of discrimination, even if they were not intended in that way,” Koper says.

Much of the public attention regarding the rights of transgender people relates to bathroom use, and Koper says it remains a flashpoint.

In 2012, the Human Rights Tribunal of Ontario ruled in favour of a packaging plant employee who transitioned from male to female during her time at the company.

The woman’s manager had told her she would need to provide medical evidence that she was female before she was allowed to use the female bathroom, but the adjudicator found that the stance violated her rights and that employers cannot insist on treating employees according to his or her birth gender.

“If there are separate bathrooms designated for each sex, individuals should be able to use the one they identify with from a gender perspective,” Koper says.

Employers should prepare themselves for a spike in accommodation requests from employees with elderly family members due to Canada’s aging population, Windsor employment lawyer Jessica Koper tells AdvocateDaily.com.

Employers have a duty to accommodate under the Ontario’s Human Rights Code (HRC), which prohibits discrimination on the basis of family status, and Koper, associate with Shibley Righton LLP, explains that family status requests traditionally tended to relate to the care of children. However, that is changing.

“Given today’s society and the growing elderly population, there are now many more individuals who are responsible for caring for their elderly parents than there used to be,” she says.

“And that number will only grow,” Koper adds.

Indeed, Statistics Canada reports that Canada’s over-65 population grew from around eight per cent of the total in 1971 to 14 per cent in 2010. By 2036, that proportion is expected to hit 25 per cent and include more than three million people aged 80 years or older.

Koper says employees should approach their employers to discuss the possibility of accommodation when they suspect their workplace requirements may conflict with their duties at home.

“Employers will take these situations on a case-by-case basis, but it is a good idea to try to find reasonable common ground, or a solution as to how the employee can be accommodated, before formally requesting a change in the workplace environment,” she says. “There is no blanket rule or policy that applies to every person.”

If they do want to pursue the matter formally, Koper says employees should be prepared to hand over information that they may have expected to remain private.

“There is a line of cases in Ontario that suggest employers have the right to request a certain amount of information, depending on the situation, as proof that there actually is a caregiving obligation that is in conflict with workplace responsibilities,” she says. “That’s where communication with the employer is very important because it does require the employee to share personal information.

“They have to be able to explain the specific situation they are faced with, and you can’t do that without letting your employer know a little more about your personal life,” Koper adds.

According to Koper, most employers are already familiar with their duties under the HRC and should respond to requests for accommodation involving eldercare in the same way they would to any other situation. Often, she says scheduling is at the heart of the matter.

“Most employee requests relate to an inability to do shift work or to work certain hours in the evening,” Koper says. “We have also seen an increase in requests for employees to split work days or take time off during the day in order to take care of someone or bring them to medical appointments.”

Koper says employers are within their rights to refuse accommodation requests that would cause them undue hardship.

“If the scheduling changes would infringe on the employer’s ability to operate the business, it may be unfeasible for it to be made,” she says.

Employers offering to augment parental leave benefits should ensure their policies are up-to-date now that the federal government has announced an extended leave option of 18 months, says Windsor employment and education lawyer Jessica Koper.

If companies or organizations have policies stating they will top-up employment insurance benefits during parental leave for employees, they should determine whether those plans would continue for the entire period if parents choose to take the time off, says Koper, associate with Shibley Righton LLP.

“If they are caught in a policy they haven’t reviewed, it could mean they have to top up an employee for a longer period or for a greater amount than they may have intended,” Koper tells AdvocateDaily.com.

Under the Liberal government’s planned changes to the Employment Insurance Act, parents can choose to extend their leaves for up to 18 months, an increase from the previous maximum of 12 months.

However, that would mean stretching out government-issued benefits at a lower rate. For example, parents who take one year receive 55 per cent of their income to a maximum of $535 a week, the Globe and Mail reports. An 18-month leave would mean receiving 15 weeks at the 55 per cent pay rate, followed by 61 weeks at 33 per cent.

Koper believes many parents likely won’t take the longer option because the lower benefit rate may be too much of a financial strain.

“Especially in cities like Toronto with the high cost of living, I don’t think many parents would be able to take 18 months, even if they wanted to,” says Koper, who recently had a baby. “On the other hand, some parents may experience substantial financial savings as they would not have to pay for child care costs for those extra six months.”

There is also the added stigma that may be attached to taking the extended absence from work, she notes. While a 12-month leave is common and generally accepted by employers, parents may face pressure to return to work sooner than 18 months, she says.

Taking a year and a half away from a job may come with further challenges depending on the field, she says.

“Subject to the employee’s type of work, role, and any specialized training or ongoing learning curves the position may entail, there may be greater difficulties returning to work after an 18-month absence,” she says.

From an employer’s perspective, organizations should be prepared to protect jobs for the entire extended leave.

“There are already issues of job discrimination for employees who take 12 months, and with the extension, employers are still legally obligated to hold that position for the full 18 months. It may involve more planning for employers,” she says.

Koper says she is supportive of the planned changes, but several key issues remain unchanged.

For example, some parents are not eligible for parental leave benefits from Employment Insurance because they don’t trigger the minimum insurable hours, she says.

“And those who make less than the capped amount are receiving less than others. Those types of accessibility issues have been ignored to date, something that has been improved in Quebec, for instance,” she says.

According to the Globe, weekly cheques work out to nearly $900 a week in Quebec, and it is the only province to offer five weeks of paid leave specifically for fathers.

Requests to have service dogs in schools are becoming increasingly challenging and complex, says Windsor education lawyer Jessica Koper.

While in an employment context, employers have the right to choose the type of accommodation when notified of an employee’s disability, the situation becomes a little murky in a school setting, says Koper, an associate with Shibley Righton LLP.

“It is much more complex when it’s a request for a psychological or mental disability, such as anxiety, as opposed to an accommodation request for a physical disability, such as a guide dog,” she says.

“It becomes an issue of balancing the rights of the school board to be able to choose the appropriate accommodation for the child, and the child’s desire to have a certain accommodation.”

Koper tells AdvocateDaily.com the situation is relatively new for school boards.

“Requests for service dogs are reaching a whole new area,” she says. “A dog will give most people comfort and joy, but it raises questions of where to draw the line when requests for service dogs are made for the general well-being and comfort of the child. Are we going to allow it strictly for serious medical reasons, and what type of evidence is sufficient for that type of accommodation?”

There are obvious concerns around allowing dogs in schools, ranging from allergies to student and staff safety as well as for students who have a fear of dogs, Koper says.

“A school board must take measures to ensure the safety of students,” she says. ”The dog must be properly certified and a school board must be satisfied that the student is able to control and care for the dog. But dogs are not necessarily considered a natural addition to a school environment.”

There are also issues surrounding the care of the dog while in school and the minimum age of a child who wishes to bring a service dog at school.

The law is clear around the fact that it is up to an employee to make clear to an employer what their needs are, such as a medical condition, she says. It’s the employer's job to find out how best to modify the work or accommodate that person.

But the situation may be different in a school, where students are making the request.

Similar requests have been made in the service industry that generally rule in favour of allowing individuals to bring a service dog in public areas, Koper adds.

“Someone requesting to have a service dog with them in a restaurant is very different from a school because you're just there for a short period of time. There is no case law in this area pertaining to schools.”

It remains to be seen how school boards continue to handle these requests as they become increasingly popular, Koper says.