As both an employment lawyer, and a female professional, I am honestly saddened that women are still advised not to reveal, either during an interview or to their employer, when they plan to get pregnant for fear of a discriminatory reaction. The hesitation and potential for discrimination if a woman were to reveal this speak volumes about the underlying issues with this topic.
Despite years of law reform, human rights advancements, and progression of women in the workplace, discrimination against pregnant employees and workers is still a reality for many women in Ontario, and Canada. It can be as overt as a person being dismissed once an employer discovers that they are pregnant – yes, cases like these still exist – to the subtle, potentially discriminatory remarks that are made to women when discussing pregnancy and future family plans with employers, including suddenly treating them as if they should not be completing certain tasks. How many Canadian women across ranks and organizations feel the pressure of potential career setbacks should they choose to get pregnant?
Of course, we are fortunate to live in a provincial jurisdiction that has legislation to protect pregnant workers. The Employment Standards Act, 2000 (the “Act’) in Ontario, for example, provides eligible employees with the ability to take job-protected pregnancy leave, as well as additional and separate parental leave after the birth or adoption of a child.
Notably, an employer cannot penalize an employee in any way because the employee is, or will be, eligible to take a pregnancy or parental leave, or for taking or planning to take a parental leave. Doing so would potentially count as reprisal against the employee under the Act. Employees have the right to reinstatement to the same or comparable job they held before the leave began, the right to continue to take part in benefit plans during the leave, and the right to earn credits for length of employment, length of service, and seniority.
Additionally, the Employment Insurance Act provides eligible employees with maternity and/or parental benefits to supplement part of the income they lose during an unpaid parental leave. Employees earn this right if they are employed in insurable employment during the 52 week period immediately before the start of their leave, and have accumulated at least 600 hours of insurable employment during the qualifying period. Moreover, an employee’s normal weekly earnings need to have been reduced by more than 40% during the leave.
Human rights legislation, on the other hand, is focused on protecting pregnant women from discrimination in the course of their employment. The Ontario Human Rights Code explicitly includes pregnancy as part of the protected ground of sex at section 10(2). The provisions of the Ontario Code have been interpreted broadly at the Human Rights Tribunal of Ontario (the “Tribunal”). The sub-ground of “pregnancy” under sex has been found to include miscarriage, abortion, complications because of pregnancy or childbirth, and breastfeeding.
The interesting aspect of Code-based awards for findings of discrimination based on pregnancy alone is the manner in which they amalgamate not just Code-based remedies with the rights of pregnant workers under the other pieces of legislation outlined above. For instance, in Maciel v. Fashion Coiffures Ltd.[1] the Applicant was hired as a receptionist at two salons owned by the respondents. This position was the applicant’s first job following her graduation from college. At the time she was hired, she was just over four months pregnant. However, she did not disclose this fact to her new employer during the hiring process. Within an hour of her first day at work, she experienced morning sickness. It was then that she revealed to her manager that she was pregnant. That manager immediately began asking the Applicant about her long-term availability. The Applicant reassured the employer that she intended to carry out this position permanently, but the manager continued to be dissatisfied. The manager then told the Applicant that she would speak to “head office” and “let her know the decision”.
Approximately 15 minutes later, the Applicant received a phone call telling her she had been dismissed. The following day, she received a telephone call from the manager who claimed to have terminated the Applicant’s employment on the basis of her “availability”, as she would be going away on maternity leave soon.
The way the Tribunal handled the Applicant’s subsequent human rights complaint was interesting in two ways. Firstly, the extremely short duration of the employer’s discrimination did not detract from the damages awarded to the Applicant. The Applicant had in total been employed for one day, and had suffered discrimination over only two days. Nonetheless, the Tribunal accounted for the fact that the Applicant had felt the impact of this discrimination for a long time, and suffered from depression after her dismissal. Due to her pregnancy, she could not take any medication to treat her depression, which was aggravated by her unsuccessful job search. The Tribunal also noted that she was vulnerable, being young, just out of school, and coping with an unplanned pregnancy. She was awarded $15,000 in damages for the violation of her right to be free from discrimination under the Code. This is a particularly high amount for general damages at the Ontario Tribunal for sex and/or pregnancy alone.
Secondly, Tribunal also decided to award two forms of lost wages. Firstly, the Tribunal awarded compensation for lost wages from the date of the Applicant’s termination up to her due date in the amount of $90000. This was particularly due to the applicant’s inability to find work after her dismissal due to her increasingly obvious pregnancy when interviewing with other employers. When the Applicant reached the seventh month of her pregnancy, she gave up her job search.
Secondly, and interestingly, the Applicant was also awarded $11,000 for her loss of maternity leave and parental leave benefits. The Tribunal viewed the discrimination against the Applicant as the reason why she had not been able to have any insurable employment hours for these benefits following her dismissal. In particular, it was noted that the applicant would have met the threshold for eligibility had she continued with the respondents until her due date.
While each case will be decided on its own individual facts, Maciel is an example of why any discrimination in the course of pregnancy, even if short-lived, can be worth pursuing at the Tribunal. Indeed, pregnancy-based discrimination is perhaps more likely to either occur over shorter durations, or to manifest itself subtly if it occurs over a longer period of time. Practitioners dealing with these cases should ensure to account for all rights involved for a pregnant employee – as Maciel demonstrates, the Tribunal can be comprehensive awarding damages for a finding of this form of discrimination. It is hoped that eventually, all workplaces in Canada will take a similar approach.
About the author
Richa Sandill is an employment and human-rights lawyer at MacDonald & Associates, and Secretary on the OBA Constitutional, Civil Liberties and Human Rights Section Executive.
[1] Maciel v. Fashion Coiffures Ltd. 2009 HRTO 1804. Adjudicator: Naomi Overend.