Canadian Retailer - Winter 2016 - 22

EMPLOYEE RIGHTS

"The first thing to bear in mind," says LeGault,
"is that, unless the individual raises the issue, there
is no need to talk about this at the interview stage.
The interview is designed to determine whether the
candidate has the skills and qualifications for the
open position, and allows the candidate to assess
whether the company and the job are a good fit.
"Having said that, I have seen cases where the job
candidate raised the transgender question during
the interview, probably because they were trying
to assess whether the work environment would be
comfortable and supportive. After hiring, the candidate can then be asked if they have any needs they
want to discuss.
"Being trans should not be an influencing factor
in the job interview."
Adds Lyndsay Wasser, Employment & Labour
Relations Partner with McMillan LLP in Toronto:
"Sometimes it's not even a conscious discrimination so much as a feeling that the [transgender]
person is 'not the right fit.' I would say the best way
to try and deal with that is to make sure you have
objective criteria for selecting candidates."
Doing so offers dual benefits, she says. "That can
help you make the right [hiring] decision to begin
with, but also to defend against any claim that you
made the decision on the wrong grounds."

ing a speaker who has lived or is living the transgender experience come in to speak to the employees. Simply having a manager or Human Resources
representative tell employees that being accepting
of a trans individual is the right thing to do is not
very effective."
Washrooms & changing rooms

One of the big issues that arises in any discussion
about transgender people, or those whose gender
identity or expression is different from their sex at
birth, is making accommodations for their use of
washrooms and changing rooms in the workplace.
"Most of the cases I have dealt with have arisen
at the point where the trans employee feels ready
to use the washroom of their 'lived gender identity,'
as opposed to their physical or biological identity,"
says LeGault.
"The first step is always dialogue with the transitioning employee to see what they think would work.
"In the cases I've worked on, they did not yet want
to use the other washroom (i.e., the one which did
not correspond to their biological identity). Usually
a one-person universal design washroom or accessible washroom was the solution."
She adds: "However, you can see that it's clear when
reading the materials from the OHRC that, in cases
where there will be some sort of a
"I think you're starting to see at least a recognition that
structural modification required,
these are people who need to be protected, and there needs the Commission expects the employer to make the expenditure
to be changes made to how businesses operate in order to
unless it is an undue hardship-
make sure there is no discrimination in the workplace."
which is highly unlikely in these
- ASHLEY MITCHELL, Miller Thomson's
types of situations."
Codes of conduct
Wasser acknowledges the conundrum that emEmployers are legally compelled to protect the ployers face, but says the law trumps any equivocasafety and security of their employees, and this in- tion on the issue.
cludes operating a harassment- and discrimination"It's a difficult situation for an employer to be in
free workplace. Many organizations state this ex- because they have to deal with potential concerns
plicitly in their corporate codes of conduct, and in of other employees. But at the end of the day they've
their staff training.
got to respect their legal obligations and the rights
"This is a group which often suffers a great deal of the transgender person as well."
of harassment, bullying and name-calling," notes
LeGault. "Accordingly, proactive steps can help to Dress codes & uniforms
make employees aware of how hurtful this type of
In addition to the issue of designated washrooms
behaviour is, and can help them understand that and change rooms, corporate dress codes also come
the gender identity feelings of transgendered and under scrutiny. This is especially important for reother individuals are sincerely held beliefs.
tailers, most of whom have policies regarding the
"In my experience the most powerful training dress and appearance of employees on the sales
tool is a video about or by a trans individual, or hav- floor and back of house.

22 |

CANADIAN RETAILER | WINTER 2016



Table of Contents for the Digital Edition of Canadian Retailer - Winter 2016

PUBLISHER'S DESK
RETAIL CURRENTS
UNDER THE BANNER
EXPANDED OFFERING
RCC APPOINTS NEW BOARD CHAIR AND VICE-CHAIR
AT ISSUE
COFFEE, EGGS AND IKEA
CONTENT-RICH CONFERENCES INSPIRE RETAILERS IN VANCOUVER AND QUEBEC
THE SUBMISSIONS ARE IN
INDUSTRY RESEARCH
FREEDOM OF IDENTITY
TALENT SHOWS
WINNING THE WAR OF FIT
ADVERTISER'S INDEX
CONSULTING ON THE FUTURE OF RETAIL
Canadian Retailer - Winter 2016 - ebelly1
Canadian Retailer - Winter 2016 - ebelly2
Canadian Retailer - Winter 2016 - cover1
Canadian Retailer - Winter 2016 - cover2
Canadian Retailer - Winter 2016 - 3
Canadian Retailer - Winter 2016 - PUBLISHER'S DESK
Canadian Retailer - Winter 2016 - 5
Canadian Retailer - Winter 2016 - RETAIL CURRENTS
Canadian Retailer - Winter 2016 - 7
Canadian Retailer - Winter 2016 - UNDER THE BANNER
Canadian Retailer - Winter 2016 - EXPANDED OFFERING
Canadian Retailer - Winter 2016 - RCC APPOINTS NEW BOARD CHAIR AND VICE-CHAIR
Canadian Retailer - Winter 2016 - 11
Canadian Retailer - Winter 2016 - AT ISSUE
Canadian Retailer - Winter 2016 - COFFEE, EGGS AND IKEA
Canadian Retailer - Winter 2016 - CONTENT-RICH CONFERENCES INSPIRE RETAILERS IN VANCOUVER AND QUEBEC
Canadian Retailer - Winter 2016 - 15
Canadian Retailer - Winter 2016 - THE SUBMISSIONS ARE IN
Canadian Retailer - Winter 2016 - 17
Canadian Retailer - Winter 2016 - INDUSTRY RESEARCH
Canadian Retailer - Winter 2016 - 19
Canadian Retailer - Winter 2016 - FREEDOM OF IDENTITY
Canadian Retailer - Winter 2016 - 21
Canadian Retailer - Winter 2016 - 22
Canadian Retailer - Winter 2016 - 23
Canadian Retailer - Winter 2016 - 24
Canadian Retailer - Winter 2016 - 25
Canadian Retailer - Winter 2016 - TALENT SHOWS
Canadian Retailer - Winter 2016 - 27
Canadian Retailer - Winter 2016 - 28
Canadian Retailer - Winter 2016 - 29
Canadian Retailer - Winter 2016 - WINNING THE WAR OF FIT
Canadian Retailer - Winter 2016 - 31
Canadian Retailer - Winter 2016 - 32
Canadian Retailer - Winter 2016 - 33
Canadian Retailer - Winter 2016 - ADVERTISER'S INDEX
Canadian Retailer - Winter 2016 - 35
Canadian Retailer - Winter 2016 - CONSULTING ON THE FUTURE OF RETAIL
Canadian Retailer - Winter 2016 - 37
Canadian Retailer - Winter 2016 - 38
Canadian Retailer - Winter 2016 - cover3
Canadian Retailer - Winter 2016 - cover4
Canadian Retailer - Winter 2016 - 43
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