Bargaining Checklist and Contract Language on LGBT Issues


Collective Bargaining Checklist and Suggested Collective Agreement Language

We need to review our collective agreements (particularly our non-discrimination, anti-harassment, benefit, bereavement, and leave clauses) to ensure that we meet our legal requirements and fully represent our members. As a union we have always negotiated beyond the law, and there are still areas where we can improve our collective agreements and push legislation forward.

What follows is a checklist and suggested contract language which are tools for bargaining committee members, LGBT activists, and our allies. Click on the links below to go to a specific topic or scroll through the entire document:

Non-Discrimination Clause

Non-discrimination clauses must prohibit discrimination against an employee on the basis of sexual orientation.

Although Human Rights Tribunals have ruled that discrimination against transgender workers is prohibited under the heading of sex, we should spell this out more clearly and add "gender identity" and "gender expression" to the list of prohibited grounds. Gender identity is included in Human Rights legislation of Ontario, Nova Scotia, Manitoba and the Northwest Territories.  Ontario's code also includes gender expression.

Suggested language:

The parties shall not discriminate against any employee because of age, race, colour, creed, sexual orientation, national or ethnic origin, political or religious affiliation, sex, gender identity, family status, marital status, physical disability, mental disability, conviction for which a pardon has been granted, union membership or activity.

Checklist:

Does your agreement recognize same-sex relationships?
Does your agreement have a non-discrimination clause? Does it include sexual orientation, same-sex partnership status and gender identity?
Does your agreement include a clause which might have a negative impact on transgender workers, such as a gender specific dress code?
Does your agreement accommodate transgender workers (e.g., washroom accessibility)?

Anti-Harassment

The CAW negotiates anti-harassment language and investigation/resolution policies in all of our collective agreements. As harassment is frequently directed at lesbian, gay, bisexual and transgender workers, it is important to clearly prohibit harassment based on sexual orientation and gender identity/expression.

Suggested language:

The parties recognize the right of employees to work in an environment free from harassment based on age, race, colour, creed, sexual orientation, national or ethnic origin, political or religious affiliation, sex, gender identity, family status, marital status, physical disability, mental disability, conviction for which a pardon has been granted, union membership or activity.

Checklist:

Does your agreement have anti-harassment language? Does it include sexual orientation and gender identity/expression?
Is there a clear investigation/resolution process?
Does your agreement call for mandatory workplace human rights training for all employees and include sexual orientation and gender identity/expression issues?

Benefits

Bargaining benefit coverage for our members' families is a key negotiating priority. We need to review our agreements to ensure that everything from our drug plans to our negotiated legal service plans meet the specific needs of our LGBT members.

The law is clear that same-sex relationships must be treated the same as opposite-sex relationships. Common-Law same-sex relationships should be subject to the same cohabitation requirements and method of proof as opposite-sex common-law couples.

Suggested language:

Eligible dependents include: the employee's spouse (including a married spouse or a common-law spouse of the same or opposite sex) and the employee's children (including a natural child, adopted child, stepchild, child under a guardianship order, and the child of the employee's spouse where the employee intends to treat the child as his or her own).

Application for benefits shall be kept confidential.

Checklist:

Is the length of cohabitation (time living together) the same for opposite-sex and same-sex couples?
Is the method of proving the relationship the same as it has been historically with opposite-sex couples?
Does the method of proof require that the relationship be "public" (there are safety issues involved in same-sex relationships)?
Are same-sex spouses entitled to all benefits under the collective agreement including pensions? (double-check benefits such as family relocation expenses, family tuition subsidies, legal services, employee/family discounts and travel passes)?
Does the drug plan include drugs for in vitro fertilization, insemination, hormone therapy, etc., without formularies and without annual or lifetime maximums? (A formulary is a limited list of approved drugs rather than any medication prescribed by your doctor)
Does the medical benefit package include coverage for sex reassignment surgeries, counselling and electrolysis?

Pension Benefits

Same-sex spouses must be recognized for the purposes of survivor benefits.

Suggested language:

A retiree is an employee of the Employer who retires under the pension plan. The spouse of a retiree is the employee's spouse (either married or common-law of the same or opposite sex)

Checklist:

Does the collective agreement and pension plan text clearly cover same-sex partners as surviving spouses?

Leave of Absence

Leave of absence language is particularly important for our transgender members. It is helpful to have language that specifically sets out the right to leave as well as to sickness and accident benefit coverage while off.

Suggested language:

An employee who provides a certificate from a medical practitioner confirming that the employee requires a leave of absence in order to undergo the medical procedure(s) related to a physical change from one gender to another shall be granted a leave of absence without loss of service or seniority and will be eligible for sickness and accident coverage while absent.

Checklist:

Does the medical leave provision allow for part days?

Does the medical leave cover workers taking time for reproductive technology uses or gender reassignment medical and surgical procedures?
Are the reasons for leave kept confidential?
Does your agreement include return to work policies that accommodate transgender workers?

Bereavement Leave

Bereavement leave provisions in the collective agreement should make it clear that same-sex families and family members are covered. Although this is covered in the law, it helps to make these rights visible.

Suggested language:

In the case of a death in the immediate family, an employee shall be entitled to five consecutive days' leave, without loss of pay and adequate additional time without pay for extended travel. "Immediate family" means the employee's spouse (including a common law spouse of the same or opposite sex), child, parents, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, mother-in-law, father-in-law, grandchildren, grandmother, grandfather and any relative living in the employee's household.

Checklist:

Does the bereavement leave provisions recognize same-sex partners and their family members? Does it respect privacy/safety issues?

Adoption/Parental Leave

Lesbian and gay members have the same right to maternity and parental leave as heterosexual members. Our collective agreement language needs to contemplate that two women or two men may have children together, either through birth or adoption. Adoption leave should be covered under parental leave.

Definition of Parent
The collective agreement can use an inclusive definition of "parent" such as the one found at section 45 of Ontario's Employment Standards Act.

"Parent" includes a person with whom a child is placed for adoption and a person who is in a relationship of some permanence with a parent of a child and who intends to treat the child as his or her own. [Ontario Employment Standards Act definition s.45]

Leave for attendance at birth/adoption
Leave provisions for the birth of the child should contemplate same-sex partnerships. Some collective agreements only entitle male employees to leave for attendance at a birth. Birth leave should be available to the non-birth parent without specifying gender. Situations of open adoption, where the employee is not yet the parent, should also be considered.

Suggested language:

Upon request, a non-birth parent shall be given a one week leave of absence with pay for attending the delivery and subsequent care following the birth or legal adoption of his or her child.

Parental Leave

Maternity or pregnancy leave covers the employee who gives birth to a child. Parental leave is available to both parents of a child. Parental leave language also covers adoption situations. Negotiating a top up to employment insurance is important so that taking a leave is financially feasible for new

Suggested language (in addition to standard maternity leave language):

Upon two weeks notice in writing, an employee who is the parent of a child is entitled to a leave of absence of up to 37 weeks following the birth of the child or the coming of the child into the employee's custody, care and control for the first time. The leave may begin no later than 52 weeks after the day the child is born or comes into the employee's custody, care and control for the first time. The employee may change the commencement date upon giving new written notice.

An employee absent on parental leave shall be entitled to all the rights and benefits of an employee on maternity leave.

Checklist:

Is the definition of "parent" inclusive? Does it recognize same-sex parents?
Are the leave provisions for attendance at a birth or adoption gender neutral?
Does the birth attendance provision contemplate attendance at the birth of a child to be adopted?
Is it clear that parental leave includes adoption leave?

Family Leave of Absence

Some provinces provide for a short-term period of leave for employees in order to take care of specific family responsibilities/emergencies. We must ensure that the definition of family in our collective agreements allows for a broad definition of family.

Suggested language:

The Employer shall grant a request for an leave of absence because of illness, injury or medical emergency of the employee's immediate family. "Family member" shall be defined and designated by the employee.