Gender Identity Protected by the Quebec Charter of Rights

On June 10th, Quebec’s Human Rights Tribunal concluded that a trans woman had been the victim of discrimination in hiring. The tribunal ruled that a Montreal bar had refused to hire her due to her gender identity. This violated Quebec’s Charter of Human Rights and Freedoms.

The manager of a bar in Montreal’s Villeray–Saint-Michel–Parc-Extension borough refused to hire the woman as a waitress when he learned she was a trans person. This was after saying that he was interested in hiring her. The woman had also completed an unpaid training with another bar employee who had nothing but good things to say about her. 

Deeply hurt by this incident, the woman complained to the Commission des droits de la personne et des droits de la jeunesse (human rights and youth rights commission or CDPDJ). She considered that this refusal to hire her was discriminatory based on her gender identity.  

The CDPDJ decided that the complaint was well-founded and decided to take the case before the Human Rights Tribunal and represent the woman there. 

The tribunal ruled in favour of the complainant and ordered the employer to pay her $118.40 for the unpaid training, $10,000 in moral damages, and $4,000 in punitive damages. 

Discrimination in hiring 

The trans woman based her complaint on Quebec’s Charter of Human Rights and Freedoms, which states that “No one may practise discrimination in respect of the hiring” of a person. Discrimination is also prohibited in other aspects of employment, such as probation periods, professional training, promotions, layoffs, and working conditions.  

To conclude that someone committed discrimination, a distinction, exclusion, or preference must have compromised the recognition and exercise of the victim’s rights and freedoms. Discrimination may be based, for example, on a person’s national or ethnic origin, disability, or sexual orientation. In 2016, gender identity and expression were added as prohibited grounds of discrimination.  

In the case at hand, the manager noticed the woman’s voice had a masculine timbre and asked if she was trans. When the woman confirmed she was, the manager said he couldn’t hire her. According to the woman, the manager said the bar’s clientele was “old-fashioned,” and he didn’t want to have to defend the woman every day.  

The Human Rights Tribunal concluded that the woman was the victim of discrimination and that she had suffered severe harm. According to the tribunal’s decision, the woman had suicidal thoughts and became obsessed with the timbre of her voice. This led her to seek two operations on her vocal cords in the United States.  

Exceptions 

However, an employer can use a distinction or preference or exclude someone without it being discrimination when it’s justified by the qualities or skills required for a job or by the type of organization involved.  

The bar manager said he refused to hire the woman for safety reasons, which could be considered a job-related requirement. But there must be solid evidence for this to be considered valid.  

An employer must first demonstrate that the requirement is legitimate and not based on simple intuition, as in the case at hand, where the manager claimed that his clientele was old-fashioned. The employer must then prove that this requirement is necessary to perform the essential functions of the position and that they could not deviate from this requirement without excessive hardship. A hardship could be considered excessive if it involves, among other things, a serious risk or an exorbitant cost. 

For example, in 2016, the Superior Court of Québec ruled that turban-wearing Sikh truckers must wear hard hats when loading and unloading cargo at the Port of Montreal, even though this may infringe on their religious freedom. The decision was justified by safety considerations. 

According to Quebec’s Act respecting occupational health and safety, employers are responsible for ensuring the safety of their employees. This includes taking “measures to ensure the protection of a worker exposed to physical or psychological violence”.  

In the case of the trans woman, the court indicated that the bar clientele’s prejudices or preferences did not justify the refusal to hire. The employer had not proven a serious or excessive risk to the safety of the waitress.