Pregnancy in EmploymentUnscrupulous Employers sometimes try and punish employees as a result of their pregnancy.  A pregnant woman will suddenly notice a cut in her work hours or a change in shift.  Sometimes a woman may also notice that her work reviews become negative, and an employer may attempt to terminate their employment due to performance.  

If this has happened to you, you may have a claim under the Ontario Human Rights code.

An employer must accommodate an employee who is pregnant up to the point of undue hardship.

The Ontario Human Rights Code protects a womans rights when she is, or wants to become pregnant

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

Consistent with the 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

    • will be taking a maternity leave: “Maternity leaves flow so directly from pregnancy and giving birth that treating a woman differently because she plans to take a maternity leave amounts to discrimination because of sex.”
    • has an abortion or experiences complications related to an abortion
    • has a miscarriage (or stillbirth) or experiences complications related to miscarriage (or stillbirth)
    • experiences complications related to pregnancy
    • lacks energy due to pregnancy
    • has too many absences related to pregnancy
    • is seen as “too big,” “fat” or is unable to wear a form fitting uniform
    • should not be working on the incorrect assumption it is not safe
    • is breastfeeding.

In the case of Peart v. Distinct HealthCare Services Inc., 2013 HRTO 305 (CanLII); it was alleged that she was discriminated based on sex within the realm of employment.  Peart alleges that she was terminated based on the fact that she was pregnant.

 The Following summarizes some of the points the applicant purported at the hearing whereby she was allegedly fired for missing work for doctors’ appointments.

[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.

Important to note

[59]        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.

There is no rule that an employer must keep an employee when they are pregnant.  If there are provable performance issues, change in company structure, otherwise legitimate business reasons for the dismissal, the employer can exercise their right and terminate.  However, if the termination is due to appointments or pregnancy related time off, an individual may have the right to seek remedy against their former employer.  

If you believe an employer may be discriminating against you based on pregnancy, 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  

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