Is An Employer Required to Provide Special Accommodations to a Pregnant Employee?

An Employer Is Forbidden By the Human Rights Code From Discriminating Against a Woman Because of Pregnancy or Desire to Become Pregnant. The Requirement to Refrain From Discrimination Also Includes Requirements to Accommodate the Special Needs of a Pregnant Employee.

A Helpful Guide For How to Determine and Understand When Speculative Alternative Theories May Present a Reasonable Doubt

Pregnant Woman In Brown Sweater Holding Hands With Fingers In a Heart Shape Over Abdomen Unscrupulous employers may attempt to punish an employee as a result of pregnancy.  In doing so, a pregnant woman may suddenly notice a cut in work hours or a change in assigned shift.  Sometimes a pregnant woman may also notice that performance reviews become negative.  A pregnant woman may also find negative changes in treatment whereas an employer may attempt to terminate the employment due to alleged performance concerns or covertly attempt to cause the pregnant woman to quit or resign.  If this happened to you, you may have a claim per the Human Rights Code, R.S.O. 1990, c. H.19 for a breach of your rights.

The Law

An employer must accommodate a pregnant employee up to the point of undue hardship whereas the Human Rights Code provides legal assurances and protection of the human rights involving a pregnant woman or woman who wishes to become pregnant.  This assurance and protection is prescribed within section 10 of the Human Rights Code which states:

Pregnancy

10 (2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

Consistent with the Human Rights Code and the Commission’s Policy, recent decisions of the HRTO and other tribunals have confirmed that discrimination based on pregnancy includes discrimination because a woman:

  • Is trying to get pregnant;
  • Is taking maternity leave, or will be, whereas maternity leave flows from pregnancy and giving birth and thus treating a woman differently because of a maternity leave is a form of discrimination based of sex;
  • Is having an abortion or is experiencing complications related to an abortion;
  • Is suffering from a miscarriage (or stillbirth) or is experiencing complications related to a miscarriage (or stillbirth);
  • Is experiencing complications related to pregnancy;
  • Is experiencing a lack of energy due to pregnancy
  • Is experiencing workplace absences due to pregnancy;
  • Is seen as “too big” or “fat” and unable to wear a form fitting uniform; and
  • Is under the incorrect assumption that is unsafe to work while breastfeeding.

Within the case of Peart v. Distinct HealthCare Services Inc., 2013 HRTO 305 (CanLII), it was alleged that Ms. Peart was discriminated against based upon sex within the realm of employment.  Ms. Peart alleged that employment was unlawfully terminated based on pregnancy.  Among the various allegations, the Human Rights Tribunal of Ontario summarized that:

[5]  In March of 2010 the applicant became aware that she was pregnant.  At that time she also informed her manager, Esther Isaacs, of that fact.  The applicant testified that she also told Ms. Isaacs that the due date was November 27, 2010.

[6]  The applicant admitted that she missed some work at the beginning of her pregnancy but that she at all times complied with company policy in that regard, i.e., that she notified the company of her inability to attend work at least two hours before her shift was to begin.  She also stated that she did sometimes take naps during her breaks at work.

[7]  The applicant also admitted she missed work due to attendance at appointments with her doctor.  However, she asserted that she also complied with the employer’s policy in that regard i.e., giving at least one week’s notice of the absence.

[8]  The applicant stated that in June 2010 Ms. Isaacs began to “micro-manage” the applicant’s work.

[9]  The applicant recalled an incident which she alleged occurred on August 10, 2010.  She stated that she was scheduled to go on a business trip.  In a conversation with Ms. Isaacs prior to departing, Ms. Isaacs offered to buy maternity ware for the applicant.  The applicant says she felt that Ms. Isaacs was making the applicant’s appearance, then noticeably pregnant, an issue.

[10]  The applicant asserted that in mid-September 2010 Ms. Isaacs advised her that it would no longer be necessary to give written notice of up-coming medical appointments i.e., that verbal notification would suffice.

[11]  The applicant testified that on the morning of October 22, 2010, she had a conversation with Ms. Isaacs in which the applicant informed Ms. Isaacs that she had a medical appointment scheduled for October 25, 2010, and hence would require that entire day off work.  The applicant says that Ms. Isaacs responded by saying, “that’s fine, come back to work on the 26th”.

[12]  The applicant advised that she had a meeting with Ms. Isaacs and the respondent’s Human Resources Manager William Snyder in the afternoon of October 22, 2010.  The applicant alleged that Ms. Isaacs made the following comments to her during the course of that meeting:

• you look tired, you seem like you don’t want to be at work anymore?

• you’re not dressing professionally;

• you are looking big;

• you should take maternity leave early;

[13]  The applicant testified that at the conclusion of the October 22nd meeting Ms. Isaacs advised her that she had changed her mind regarding the request to have the day off on October 25th.  Ms. Isaacs now wanted the applicant to return to work after her medical appointment was concluded on the 25th.  The applicant stated that the final mutual agreement between her and Ms. Isaacs was that the applicant would telephone the respondent’s office after her medical appointment to discuss with Ms. Isaacs whether or not she should to return to work that day.

[14]  The applicant stated that, in the late morning of October 25, 2010 she telephoned the respondent’s office, but was informed that Ms. Isaacs was in a meeting.  The applicant testified that sometime later in the day she again telephoned the office and left a message for Ms. Isaacs that she would not be able to return to work that day.

[15]  The applicant stated that in the late afternoon of October 25, 2010, she received a voice mail message on her residence telephone from Ms. Isaacs asking her to return the call.  When she returned the call, Ms. Isaacs requested that the applicant return the office keys that were in her possession.  The applicant testified that she could not come to an agreement on where to meet Ms. Isaacs to hand her back the keys.  The applicant said that Ms. Isaacs terminated the telephone conversation with the remark, “I don’t have time for this”.

[16]  The applicant testified that in the early evening of October 25, 2010, Ms. Isaacs again telephoned her at her residence.  In the course of the conversation Ms. Isaacs stated to the applicant, “I’m at the office processing your maternity leave…I think it would be best if you don’t come back to work…I’m processing your maternity leave early”.  The applicant indicated that at this point in the conversation she asked “why?”.  The applicant testified that Ms. Isaacs answered, “you didn’t get back to me re scheduling today…I’m not paying to babysit you”.  The applicant responded, “I know my rights”, to which Ms. Isaacs responded, “you do whatever you think necessary, but don’t come back to work tomorrow”.  The applicant says Ms. Isaacs then hung up the telephone.

[17]  The applicant stated that on October 26, 2010, she telephoned the respondent’s office and spoke with a co-worker named “Lillian” who advised the applicant that Ms. Isaacs had told the staff person responsible for payroll to prepare a “Record of Employment” (“ROE”) for the applicant indicating maternity leave as the reason for the interruption of earnings.  The applicant never returned to work for the respondent.

Interestingly, it is stated within Peart, among other cases, that the reason for termination, such as pregnancy, may be discriminatory and lead to a successful Human Rights Code violation case even when the pregnancy, or other basis of discrimination is other than the predominant reason for the termination from employment.  Specifically in Peart it was said:

[59]  The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. It is also well-established in human rights law that in order for a termination of employment to constitute a violation of the Code, discrimination need only be one of the reasons for the termination. It is not necessary that discrimination be the sole or even the predominant reason for the termination for the Code to be infringed.  See, Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 and Royal  v. Optilinx Systems Inc., 2010 HRTO 2135.  The applicant must, however, establish a nexus between the termination and the prohibited ground on which she relies. My job is therefore to determine whether Ms. Isaacs’ decision to terminate the applicant’s employment was tainted by impermissible consideration of the applicant’s pregnancy contrary to the provisions of the Code.

Summary Comment

An employer is without a requirement to keep a pregnant employee; if there are provable performance issues, change in company structure, or other genuinely legitimate business reasons for the dismissal, the employer can exercise the right to terminate an employee; however, if the termination is due to appointments or pregnancy related time off, then the previous employee may have the right to seek remedy against their former employer.

If you believe that an employer may be discriminating against you based on pregnancy, among other things, either during employment or while you are off on maternity leave, it would be wise to discuss your individual matter with a legal representative at SFG Paralegal Services LLP.


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