With regard to Ontarios Human Rights Code, it is evident that Emmas Case involved more than one prohibited grounds of discrimination. Besides, the Ontario Employment Law Code states that every person has the right to equal treatment in their place of employment without either harassment or discrimination due to race, ancestry, sexual orientation, gender expression, family status, marital status, or disability among others. Therefore, the different prohibited grounds of discrimination in Emmas case are such as religion, sexual orientation, and gender identity. More specifically, gender identity is the primary prohibited grounds of discrimination since according to the law, it is defined as a persons internal and individual experience of gender (OHRC, 2016). Besides, this kind of identity is their sense of being a man, woman, both, neither, or even anywhere along the gender spectrum, which is the primary cause of the conflict between Emma and her employer, Noah.
Based on the fact that Noah deprives Emma of the right to use the female bathroom at Garden Plus citing her legal paperwork on file with her employer which still indicates that she was male, Emma does not have a prima facie case of discrimination against Gardens Plus. However, the fact that Noah also bases his reasons for not allowing Emma to use the female bathroom on the fact that he did not want to scare the customers, evidence discrimination (Filsinger, 2015). According to the Ontario Code, many other kinds of discrimination such as failure to accommodate code related needs as well as systemic discrimination are prohibited. Besides, concerning the sexual orientation code ground, discrimination exists when rules, standards or even the requirements that appear to be neutral have a discriminatory on those people who are identified by the code. In this case, Emmas transgender intentions are the ones that are identifiable by the code. In a similar regard, with reference to the legal responsibilities for human rights at work, employers, in this particular case, Noah, have the primary obligation to ensure that their workplace is free from discrimination and harassment. The law requires that the employers provide a working environment where human rights are respected and that their employees are accorded equal opportunities.
Besides, for Emma to have a concrete prima facie case against her employer, Gardens Plus, the Ontario Human Rights Code states that the organization, in this case, Garden Plus, can only be said to have violated the discrimination code when they directly, intentionally or unintentionally infringe the code (Filsinger, 2015). Which in this case, Noah does not directly discriminate against Emma since her original records in the Garden Plus files indicate that she is male. Similarly, another reason why the employer can be said to have violated the code is when he or she does not directly infringe the code but instead gives the authority, condones, adopts or even ratifies a particular kind of behavior that is contrary to the code. Looking at this particular case, Noah who is Emmas employer does not constructively discriminate against Emmas sexual orientation, but he is only concerned about the well-being of his clients and family beliefs, and hence this does not guarantee Emma a prima facie case against them.
Sample Human Rights Case
Kohli vs. International Clothier, 2012 HRTO 153
In this particular case, Ms. Kohli had been passed over for promotion to an Assistant Manager positions, twice, since she was a woman. According to the Ontario Human Rights Law, the Tribunal accepted that the store manager at the International Clothier had confessed to Ms. Kohli that she was not a suitable employee for the Assistant manager position since she was a woman. Besides, the manager had told Kohli that if she challenged these decisions made by the management, she was subject to reprisal.
After the hearing of this particular case, the tribunal ordered the respondents (the International Clothier) to pay $12, 000 to the applicant in damages for the loss of her rights to be free from any kind of discrimination. Also, the Respondents were ordered to complete the Ontario Human Rights Commissions human rights training as well as provide copies of the completion to the Applicant. Based, in this context, it was evident that Ms. Kohli justifiably had a prima facie case against the International Clothiers.
Firstly, the Kohli vs. International Clothier case compares to Noahs case in the sense that the two cases are both human rights cases relating to employment discrimination over gender orientation. More specifically, both the employers, Noah and the International Clothier store manager approach their employees citing their gender orientation as the primary reasons why they are deprived of their rights in their place of work. There are, however, differences in the two cases. For instance, Ms. Kohli, unlike Emma, justifiably has a prima facie case against her employer since she was told by the store manager that it was impossible for her to get a promotion, primarily because she was a woman. Emma, on the other hand, does not have a case against her employer since her paperwork at her place of work indicated she was male (Ontario Human Rights Commission, 2008).
Supposing there was prima facie evidence of discrimination by Gardens Plus, the employer would have no other option than to accommodate Emma. This is drawn from the 2012 amendment to the Ontario Human Rights Code which prohibits the discrimination against transgender people. After the passage of this particular law, Ontario became the first Canadian Province to recognize gender under its Human Rights Legislation (Filsinger, 2015). Based on the facts that are put across in Noahs Case, it is evident that Emma is a transgender female since she was born as a male. Besides, the Ontario Human Rights Commission defines transgender as a collective term that refers to people with diverse expressions and identities which are commonly known to differ from the stereotypical gender norms. Another reason why Emmas employer is supposed to accommodate her is based on the bill which updates the Canadian Human Rights Act and the Criminal code, which is inclusive of the term, gender expression and gender identity. Under this code, both the transgender and the gender diverse people are protected under the law, and they are given the right to know that they are accepted, welcome and that the Canadian Human Rights Law frees them to be true to their most authentic selves.
Ideally, there are some areas of accommodation which could be outlined by Emmas employers. Some of these alternatives would be such as; finding accessible all gender washrooms as accommodation for Emma, provide privacy options that every person using the change rooms may choose to use so as to accommodate Emma. Besides, the employer may also make clear that accommodation options will always be provided in cases a trans person requests on an individual basis. Finally, another way the employer could accommodate Emma, is to allow her to not only change her name but also to change her identity on her employment paperwork so that her gender identity would be justifiable to all the other employees as well as Noahs family members.
In conclusion, an analysis of Emmas case substantiates that gender identity is one of the most prohibited grounds of discrimination for a majority of the transgender individuals. However, based on above discussed cases, it is evident that Ontarios Human Rights Code offers protection against sexual discrimination among employees and most importantly against the transgender individuals. Particularly, the law provides these protections through the amendment of the Criminal Code of Human Rights to include the terms gender expression as the protected grounds.
Filsinger, K. J. (2015). Employment law for business and human resources professionals(3rd ed.). Ontario: Emond Montgomery Publications.
Ontario Human Rights Commission. (2008). Policy on discrimination because of pregnancy and breastfeeding. Toronto, Ont.: Author.
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