Friday, November 9, 2018
As published in the Sunday Business Post, Sunday 4th November 2018. The topic of transgender rights and equality has come to prominence in recent years and the latest decision of the Workplace Relations Commission on the subject, handed down in last month, is the perfect example of this.
This case involved an equality claim in which a transgender man visited a barbershop for a haircut, only to be told by an employee barber that they “don’t cut ladies hair”. The comments were made in front of a number of customers, causing distress to the complainant who left the premises. He subsequently initiated an equality claim in the WRC resulting in an award of €5,000. The WRC adjudicator commented that “the complainant was treated differently, because he was transgender when he was refused a haircut by the respondent. This amounts to discrimination on the grounds of gender.”
The case is a classic example of how careless, if not discriminatory, treatment can result in financial loss and, perhaps more significantly, negative publicity for a business. It’s a clear demonstration of what not to do in a situation like this one and there are valuable lessons to be learned for employers.
While we haven’t yet seen a significant number of claims involving members of the transgender community in the workplace, there is no doubt at all that the same principles will apply.
According to the Transgender Equality Network Ireland an estimated 1% of the population will experience some form of gender variance. This equates to roughly 45,000 people in Ireland. A survey by the Transgender Equality Network Ireland in 2017 found that almost half of all transgender employees in Ireland conceal their identity from employers and co-workers, as they anticipate that they will experience discrimination.
The issue of transgender discrimination has been considered by the courts and tribunals sporadically. The first such claim was heard in 2011 and it remains the most significant decision to date. In that case, a transgender woman was awarded €35,000 and, again, the case appears to be a textbook demonstration of how not to deal with these issues: the employee was asked to conduct certain work on behalf of the company in her former male identity, was prohibited from using the female restrooms and eventually was required to work from home due to a “lack of office space”. The manner in which she had been treatment clearly influenced the size of the award.
Irish employment law does not deal with the question of gender identity specifically – there is no piece of legislation, for example, addressing the rights of individuals in transition. However, remedies are still available for a transgender employee who is the subject of adverse treatment in the workplace as a consequence of a change in gender identity.
Most importantly, equality law allows an employee to seek redress from the Workplace Relations Commission in circumstances where they are the subject of discrimination under one of the protected grounds.
A transitioning employee, to take one example, could argue that they had been discriminated against under the gender ground and could certainly bring a claim. This is the approach taken in the most recent case, involving a barbershop. Equally, discrimination on the basis of sexuality is prohibited.
There is therefore probably no need to explicitly mention transgendered individuals in legislation – the protections already available likely encompass them (something that is demonstrated in both of the cases referred to above).
Separately, an employee has an unquestioned right to a safe place of work – and that definition is broad enough to encompass a workplace that is safe from harassment. Therefore an employee who is the subject of derogatory treatment as a consequence of expressing his or her preferred gender can complain to their employer and seek remedial action. If a stubborn employer either refuses to engage (or, perhaps more likely, takes a laissez-faire approach to these issues), that employee could in theory commence proceedings.
All in all, it’s in an employer’s interest to be aware of these principles and ensure that their business is flexible enough to accommodate transgender employees in an understanding way. We need to see more reported decisions to flesh out the core principles but it’s highly likely that a transgendered employee who has been the subject of discriminatory treatment will receive a sympathetic response from the WRC and the courts.