A recent article by Sally Evans in the Times Live reports the situation of an African employee who was terminated as a result of undergoing a sex change.
For several years Chris Ehlers worked as a sales representative for Bohler Uddeholm Africa, a male dominated multinational steel retailer based out of Africa. In early 2008, Ehlers began to undergo a series of sex change procedures. Ehlers soon became the subject of disrespectful comments by co-workers. For example, Ehlers received an SMS message which said: “I will never have respect for low-class and a wannabe woman”.
Ehlers complained to Bohler’s management. Following a formal inquiry, Ehlers was provided with the following ultimatum: revert to being a man or accept a severance package. Eventually, Ehlers was terminated after a second inquiry into the complaint found that the employment relationship had been seriously prejudiced by Ehlers. This decision was premised on the belief that an employer has the right to protect its business image in a predominantly male-oriented market.
Ehlers is now suing Bohler for discrimination. Despite having been offered the equivalent of $21,000 CAD to settle the case, Ehlers’ desire is to be reinstated in her position at Bohler.
Ehlers advances the position that she ought to have been kept on as a Bohler employee regardless of gender. Ehlers had and continues to have the necessary occupational qualification, skill and knowledge to perform the duties required of a Bohler sales representative. Ehlers’ ability to perform the work did not change in any material way once Ehlers’ identity was changed from Chris to Christine.
In response to Ehlers’ discrimination lawsuit, Bohler claims that Ehlers had failed to disclose to the company that she was undergoing sex change procedures. Once disclosed, the parties initially agreed that Ehlers would hide the effects of the process and continue to wear men’s attire in order to protect the company’s image. As soon as it became clear that Ehlers would identify herself as a woman in the workplace and dress in women’s attire, Bohler claims that her “continued presence in the office had become impractical”.
There is no doubt that in Canada the protections provided to employees pursuant to Federal and Provincial human rights legislation trump any interest that an employer may have in regard to its image. The mere fact that an industry or market is male or female dominated does not make it acceptable to discriminate on the basis of gender.
If an individual is qualified to do the job, as was Christine Ehlers, gender should not come into the equation unless there are exceptions expressly contemplated by the legislation. For example, in Ontario the following exceptions allow discrimination on the basis of sex in the employment context:
- Employment-related benefits plans;
- Services and contracting with respect to reasonable bona fide insurance differentiations, distinctions, exclusion or preference;
- Employment by religious, philanthropic, educational, fraternal or social institutions where it is a reasonable and bona fide and favours persons manifesting the ground of discrimination; and
- Employment where a person’s sex is a bona fide occupational requirement.
If Bohler was arguing its case in Canada, it would be required to satisfy an adjudicator that Ehlers’ gender is a bona fide occupational requirement for the performance of the duties of a sales representative in the steel industry. In my view, Bohler would face a lot of resistance in Canada. After many years of political advocacy, our society has finally started to recognize that a person’s gender does not, in any way, determine one’s ability to perform work-related duties. To accept Bohler’s position would constitute a regression to the many advancements our society has made with respect to the equality of sexes.