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Queen's University
 

Vanderputten v Seydaco Packaging Corp. [2012] OHRTD no 1946

Facts

The complaint, Maria Vanderputten was dismissed from Seydaco Packaging following an incident with a co-worker (Gerry Sanvido).

The applicant, a transgender woman, was not a model employee.  Before coming out at work as a trans woman, she had a discipline history for insubordination and angry outbursts for which she was eventually dismissed in 2006.  Rehired in 2007, she was subsequently suspended for an incident of workplace violence (swearing, throwing wood). 

In 2008, she entered into the gender identity clinic at the Centre for Addiction and Mental health and was put on hormone treatment in preparation for genital reconstruction surgery.  She began dressing in “feminine” clothing (skirts, bras) and wearing makeup at work.  The president of the company told her that she would be treated as a male employee until such time as she presented legal or medical documentation attesting to her gender status.  When she asked him to write the Centre for Addiction and Mental health a letter attesting that she was working in a “female gender role”, he did write the letter but refused to attest that she was working in a female gender role, as he was a male “Tony Vander Putin was employed as a male gender and will continue to be employed as a male gender until we are provided with sufficient medical and Ontario Labour standards information to change his status to a female gender”.

When the Director of Operations heard from other female employees that Maria had told them that he would eventually be using the women’s washroom, he forbid her access to the facilities until such time as she could prove that he was a female by providing medical or legal documentation.  One day, while working in a warehouse (located at a different location from the plant where she usually worked) Maria used the women’s washroom because the plumbing of the men’s washroom was broken.   The Director of Operations received a complaint (from an employee of another business who rented space in the warehouse) and told Maria not to use the washroom. She was not disciplined but was not allowed to work at that warehouse anymore.

Like all the employees, Maria had to change from her own clothing into the company uniform upon arrival at work.   The men teased her because of the clothes she wore and her increasing breast size (from the hormones). Management denied her request to switch shifts so that she could change when the other men were not there, and told her to get to work early to change before anyone else arrived. This was impossible due to the Public Transit schedule.

Maria complained several times about alleged harassment in the workplace, including demeaning comments and questions about her gender, sexual orientation, physical violence (pushing, shoving, having things thrown at her), being isolated, being picked on, being stared at, being mocked publically on the company’s bulletin board (news clipping of a transvestite with the applicant’s name written across it).  The company dealt with some of these complaints.  Some employees were told to cease the teasing or face discipline.  An employee who physically injured the applicant was fired.  A meeting was held in which all employees were asked to read and sign a copy of the Code of Business and Conduct Ethnics which included an anti-discrimination clause

The respondent’s defense was that the applicant was the cause of all the incidents she characterized as harassment.  A number of complaints were investigated by the president or the director who spoke to the alleged harassers and came to the conclusion that they had all been provoked by the applicant. The president testified that the applicant provoked her fellow employees her by “displaying” her new clothing, exposing her bra to a female employee, asking men to comment on her bra and her growing breasts, by calling some of them homophobic names, or giving them written confirmation of her sexual identity.   It got to the point that when Maria came forward with a complaint about an employee hitting her in the fact with a “gay lea” card the director said “You probably started it”.

Maria received a letter of reprimand with a threat of termination for asking some of the women employees to share their gender-related experiences relating to their breasts and their menstrual cycles.

The applicant was dismissed following an incident in which she came to complain about one of her most persistent alleged harassers (Mr. Sanvido, named as a personal respondent in this case). She told the president that Mr. Sanvido had just called her a faggot for no reason.  The president interviewed Mr. Sanvido who claimed that Maria had been throwing skids around in an aggressive way so he told her not to be an asshole. It was Maria who, in anger, called him a “faggot”.   Maria denied throwing skids around, but admitted that at that time she should have been doing a different task; shrink wrapping. She had, instead, been cleaning up the skids that someone else had left lying around.   She said that she was working in a poisoned environment and that she couldn’t work under these conditions.  As a result, Maria was dismissed for insubordination (not doing the right task at the right time) and workplace aggression.  Mr. Sanvido was not disciplined.

Issue

  1. Was the applicant harassed because of her sex and gender identity?
  2. Did decision to terminate the applicant amount to discrimination?

Decision

  1. Yes
  2. Yes

 Reasons

  1. "For the reasons that follow, I find that prior to the date of the applicant’s dismissal, the applicant was subject to a poisoned work environment, through harassing comments about her gender identity and being required to use the men’s change room. Seydaco contributed to this poisoned environment through its insistence that the applicant be treated as a man in all respects until she completed surgery, including requiring that she change with men, and its failure to investigate and respond reasonably to the applicant’s allegations that she was being harassed because of her sex and gender identity “. (62)
  2. The tribunal used two human rights principles to make this determination 1) “Where termination occurs within a poisoned work environment a proper consideration of whether the termination was discriminatory requires that it e examined in the context of the poisoned work environment’ [Smith v Mardana 2005] and 2) Where employees are confrontational or aggressive as a result of a discriminatory working environment, discipline for that aggression is a violation of the Code  (several precedents see para 81) It concluded:  “Given all the events the overall attitude taken toward the applicant and her transition, it is ore probably than not that the applicant’s complaints of discrimination, the conflicts that arose because other experience her transition as novel and there her sex play a part in the decision to terminate her employment

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000