Gender Identity: Prohibited Grounds of Discrimination in Hiring

The Tribunal des droits de la personne recently ruled against an employer for discriminatory refusal to hire based on gender identity. This ruling reaffirms the well-established principles of action on discrimination in respect of employment and occupation, while applying them to a specific case.

The authors recently published an article outlining several recent rulings on diversity and inclusion that clarify Quebec employers’ rights and obligations regarding new workplace realities.

The Tribunal des droits de la personne in Bar Lucky 7 case (in French only) from June 10, 2024, is an instructive new case for employers seeking to provide an inclusive work environment that is respectful of diversity.

The Facts

In the winter of 2017, the complainant, a transgender woman, showed up for her first shift at a Montreal bar. After the woman was given training for a waitressing position, the manager asked her if she was transgender. When she confirmed that she was, the manager refused to hire her, citing her safety and the reaction of the bar’s customers.

The Ruling

The Tribunal began its analysis by pointing out that 2016 marked a significant turning point in the recognition of gender identity rights in Quebec. By including gender identity as a protected ground of discrimination under section 10 of the Charter of Human Rights and Freedoms, the Quebec legislature strengthened the legal protection of transgender and non-binary people. The Tribunal confirmed that the words “gender identity or expression” in section 10 of the Charter include being transgender.

Therefore, the two-step test established by the courts for matters of discrimination now applies to inequality based on gender identity.

The first step of the test consists of demonstrating the existence of prima facie discrimination byproving the following three elements:

1) a distinction, exclusion or preference,

2) based on one of the grounds listed in the first paragraph of section 10 of the Charter, and

3) which has the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom.

The burden of proof falls on the complainant, who easily demonstrated the three elements in this case. The Tribunal therefore moved quickly to the second step of the analysis.

At the second step, it is up to the defendant to refute the allegation or offer a defence by justifying their decision or conduct in one of two ways:

1) presenting a defence based on “the aptitudes or qualifications required for employment”, or 

2) showing that their decision or conduct is “justified by the charitable, philanthropic, religious, political or educational nature of a non-profit institution or an institution devoted exclusively to the well-being of an ethnic group”.

If the employer fails to justify their refusal to hire on one of these two grounds, the refusal constitutes a breach of the principles of non-discrimination set out in the Charter.

In this particular case, the employer based their refusal to hire on two grounds:

1) the safety of the complainant;  

2) the reaction of their customers to the hiring of a trans woman.

With regard to the complainant's safety, the Tribunal stated the following:

[85] An analogy with situations in which an employer refuses to hire a disabled person on the grounds that they present a danger to themselves or others is instructive. It is not sufficient to invoke a mere risk of danger for refusing to hire a person. The risk must be sufficiently serious or excessive to constitute undue hardship. [translation].

Absent proof of serious or excessive risk, the Tribunal considers that an employer cannot base a refusal to hire on mere allegations or speculation, as is the case here.

The Tribunal also points out that every employer has an obligation, under section 51 of the Act respecting occupational health and safety, to take measures to ensure the protection of a worker exposed to physical or psychological violence in the workplace.

The Tribunal referred to the principles laid out by the Court of Appeal, which states that the employer must take all reasonable and humane measures to ensure the health, safety and physical well-being of workers.

The Tribunal concluded that the employer in this case was required to ensure the safety of all its employees, including with respect to its “old-fashioned” customers, and that the risk of violence towards the complainant, if one existed, did not exempt the employer from this legal obligation.

With respect to concerns about customer prejudice, the Tribunal, following the ruling of the Supreme Court of Canada,  rejected this defence and affirmed that human rights cannot be overridden by business expediency alone. Therefore, discrimination cannot be justified on the basis of the preferences of a business’s clientele.

The Tribunal concluded that the complainant was subject to discrimination and ordered the employer to pay a total of $15,000 in material, moral and punitive damages.

Comments

To summarize, the Tribunal drew three conclusions in the case of Bar Lucky 7 and the refusal to hire the complainant.

• Firstly, the employer had a legal obligation to protect its employees.
• Secondly, mere risk, without proof of undue hardship, does not justify a refusal to hire. The employer’s concerns in this case were merely allegations or speculation
• Thirdly, the employer cannot justify its refusal to hire on the grounds of the negative economic repercussions that could arise from its clientele’s prejudice towards transgender people.

While not denying the discretion that employers have regarding their hiring process and criteria, these cannot be discriminatory under the Charter, including with respect to gender identity.

Do you need assistance with the hiring process at your enterprise? Our Labour and Employment Law team will be happy to assist you.

The authors would like to thank Éloïse Carle, a law student, for her contribution to this article.