Protection against discrimination in employment extends to all aspects of the employment relationship, from the recruitment and selection process, through all the various aspects of the working relationship, to the termination of the employment. Employment includes full-time work, part-time work, volunteer work, student internships, special employment programs, probationary employment, and temporary or contract work.
7.1. Other relevant pregnancy-related legislation and protections
Pregnant women have significant legislated rights in addition to those under the Code, most importantly under the Ontario Employment Standards Act (ESA) and the federal Employment Insurance Act (EIA). These rights may overlap with Code protections, or may provide additional protections. It is important to remember that these pieces of legislation have purposes that may differ from those of the Code, and are aimed at providing minimum standards only. The Code has primacy over provincial legislation. This means that where there is a conflict between rights under the Code and rights under the other provincial legislation, the Code takes precedence unless the legislation specifically states otherwise.
7.1.1. Entitlements under the Employment Standards Act
For detailed information on entitlements under the ESA, contact Employment Standards at the Government of Ontario Ministry of Labour (www.labour.gov.on.ca).
The ESA entitles pregnant employees who fall under that legislation to pregnancy leave, and sets minimum standards for that leave, including:
- Who is entitled to pregnancy leave
- Information that pregnant employees must provide to their employers when requesting pregnancy leave
- Timelines for beginning and ending pregnancy leave
- Length of a pregnancy leave
- Entitlements where there has been a stillbirth or miscarriage.
The ESA also entitles parents to take parental leave when a child is born or comes into their care, control and custody for the first time. Both parents may take parental leave. The ESA sets out minimum standards for:
- Who may take parental leave
- Notice that employees must provide to the employer regarding parental leave
- When parental leave must begin and end
- The length of parental leave.
During pregnancy and parental leave, the ESA protects the employee’s right to continue to take part in employer benefit plans. The employee’s leave period is to be included in any calculation of the employee’s length of employment, length of service or seniority. At the end of the leave, the employee must be reinstated to the position he or she most recently held with the employer, or, if that no longer exists, a comparable position, unless the person’s employment has been terminated for reasons unrelated to the leave. An employer cannot refuse to give the employee her job back because it prefers the person who was hired to replace her during the leave.
Under the ESA, employees must be paid the greater of the rate that they were making before the leave, or the rate that they would have been making if they had worked throughout the period of leave.
Note that the ESA prohibits employers from intimidating, dismissing or otherwise penalizing an employee because he or she is or will become eligible to take a leave, intends to take a leave, or takes a leave under the Act.
7.1.2. Benefits under the Employment Insurance Act
For detailed information on benefits under the EIA, contact Service Canada (www.servicecanada.gc.ca).
Eligible workers who are away from work due to pregnancy, childbirth or adoption may be entitled to pregnancy and parental benefits under the EIA. Employment insurance benefits may be payable for up to 15 weeks for pregnancy and up to 35 weeks for parental benefits, for a potential total of 50 weeks of employment insurance benefits for women who give birth. In some cases, pregnant women may also be eligible for up to 15 weeks of sickness benefits.
7.1.3. Collective agreements and company policies
Pregnant women may also have rights under company policies and collective agreements. Company policies and collective agreements cannot act as a bar to providing accommodation to pregnant women, subject to the undue hardship standard. Unions and employers are jointly responsible for negotiating collective agreements that comply with human rights laws, and should build conceptions of equality into collective agreements.
7.2. Hiring, promotions, transfers, termination
Discrimination in employment because of pregnancy is often based on common negative stereotypes and attitudes, such as:
- A pregnant woman will not be able to work productively and effectively during her pregnancy and accommodating her needs will be onerous
- A woman will use her pregnancy as a reason not to work
- A pregnant woman generally does not return to work after her
- maternity leave
- If she does return from maternity leave, she will no longer be a desirable employee, as her priority will be her childcare responsibilities rather than her career.
These ideas are long-standing and persistent, even though they are not borne out by the facts. They may influence employers to refuse to hire pregnant women, to outright terminate their employment, or to discourage them from staying at or returning to the workplace.
Subject to bona fide requirements, denying or restricting employment opportunities in hiring, or transferring, etc. a woman because she is, was or may become pregnant or because she has had a baby, is a violation of the Code. An employer cannot refuse to hire a pregnant woman thinking that she will be going on maternity leave, or for other reasons related to the pregnancy. Despite the potential for some inconvenience to an employer of having to train a new employee and then replacement during maternity leave, this is not valid justification for deciding not to hire a pregnant woman.
Example: A woman was hired to work as a receptionist in a hair salon. She advised her employer that she was four months pregnant the first day of work and was fired the same day. Although the woman was hired to work full-time hours, the employer claimed she was fired because she had asked to work part-time hours. The HRTO did not accept this version of events, and determined the woman was fired after revealing her pregnancy.
Under section 23(2) of the Code, employers cannot make inquiries, whether written or oral, during the application stage of the hiring process, that directly or indirectly classify applicants based on a prohibited ground. Employers cannot request that applicants provide information about whether they are, have been
or intend to become pregnant. Even where an employer still offers the woman the job, these types of questions are discriminatory. Such questions could be discriminatory on the grounds of family status, sex (pregnancy) or both. Employers may only ask questions related to pregnancy and breastfeeding at a personal interview in the rare circumstance that the inquiry relates to a bona fide occupational requirement.
Pregnant women and women of childbearing years are vulnerable to subtle forms of marginalization in the workplace. Employers sometimes withhold or withdraw projects or opportunities from pregnant women or women of childbearing age because they question the woman’s commitment, competence or capacity, or because they believe that “she will be gone on leave soon anyway.” Employers cannot refuse to provide training or promotions to women because of the mere fact that they are pregnant or that they will be taking a pregnancy-related leave of absence. The fact that a woman will be taking a pregnancy-related leave of absence should not be taken into account in determining access to workplace opportunities, unless there is a bona fide requirement involved.
Where possible, employers should make sure that women who are away from work due to pregnancy-related leaves are informed about major developments and workplace opportunities. A woman loses more than just a project or a promotion when she is discriminated against because of pregnancy – she experiences a missed opportunity, which may have long-term consequences for her employment prospects.
Example: When a one-year position as a Vice Principal became vacant, a highly regarded teacher with previous positive experience as a Vice Principal applied. The school board refused to consider her application because she would be on maternity leave for the first part of the term The Alberta Court of Queen’s Bench found that the woman had been discriminated against based on sex. While the school board expressed concerns about the continuity and disruption to the system, the Court found that the inconvenience that would have been caused by accommodating the claimant’s maternity leave would not have caused undue hardship.
An employer is entitled to make changes to a workplace while a woman is on leave, but must make sure that she is not disadvantaged or negatively affected by the decisions compared to other employees who are not on leave. Where changes to the organization are being planned, this means asking women on maternity leave for input, if other employees have this same opportunity, particularly if a woman’s job will be affected.
Example: A human rights tribunal found that while a woman was on maternity leave, she was excluded from having any involvement with the company, excluded from any consultation about the development of the new sales structure that would affect her position, had her flexible work arrangements cancelled, and was demoted from a manager to a salesperson. The tribunal found that this was adverse treatment that was linked to the claimant’s pregnancy and to her family status, and concluded that the employer had discriminated against her.
Discriminatory termination of employment due to pregnancy may take a variety of forms, including:
- Terminating a woman’s employment at the time she announces her pregnancy, after she becomes visibly pregnant, or because of symptoms or complications related to her pregnancy
- Dismissing a pregnant employee who requests accommodation for pregnancy-related needs
- Constructively dismissing a pregnant employee through harassment, failing to schedule her for work, demotions, unwanted transfers, forcing her on leave, excessive criticism of her work, failure to accommodate her pregnancy-related needs, or other negative treatment
- Dismissing an employee while she is on leave, when it is time for her to return from pregnancy-related leave, or refusing to offer her another employment contract because of her pregnancy.
Example: A woman worked as a bartender. After her employer learned of her pregnancy, the employer repeatedly questioned her about whether she would continue to work, discussed the need to find a new bartender, tried to persuade her to leave her job early, tried to change her shifts, and accused her of stealing beer as a pretext for firing her. The HRTO found the employer had discriminated against the woman based on her pregnancy.
Where an employer knows that a woman is pregnant and she experiences a negative employment outcome, such as losing her job, human rights tribunals have said that this situation needs to be examined carefully to make sure that the pregnancy was not a factor in the treatment she received.
This is particularly the case where the termination closely follows a woman revealing her pregnancy, asking for a maternity leave or telling her employer that she will be returning from a maternity leave. Decision makers have even said that the suspicious timing creates an inference that the pregnancy was a factor in the termination, saying “the timing alone indicates a nexus, and demands an explanation.”
Human rights tribunals have also said that an employer cannot refuse to give an employee her old job back at the end of her pregnancy or parental leave, or a comparable job if her job no longer exists.
Example: An employee taking a maternity leave told her employer when she was planning to come back to work. Her employer told her that due to a downturn in business, he had no choice but to lay her off. However, the person hired to replace the employee during her leave was kept on after she was laid off. A tribunal found that this was discrimination based on sex (pregnancy). The tribunal said that the employer “was entitled to take reasonable steps to address the difficult economic reality it was facing, including laying off employees. What it was not entitled to do, however, was to refuse to allow [the claimant] to return to her position when another person was occupying that position and performing work that, but for her leave, [the claimant] would have been performing.”
If an employer is not clear about how long a woman plans to take for a maternity leave, it has a duty to clarify this, without assuming that a woman will not be coming back to work. An employer should not dictate the length of maternity leave a woman takes (if it is within the parameters set by the ESA).
An employer cannot arbitrarily decide that a pregnant employee should take a leave of absence as an accommodation measure, without considering other options for dealing with a situation requiring accommodation, in consultation with the affected employee.
Example: A woman who worked as a Mobile Patrol Officer for a security company advised her employer that she was pregnant. She was told she could not work any more shifts for alleged health and safety reasons, and was put on short-term disability leave, even though she did not believe she had a disability. Because she was not eligible for sick benefits, and her maternity leave benefits would be affected by not being able to work, she took a job with a competitor. Because of this, her employment was terminated. The HRTO found that the employer’s claim that the presence of a pregnant woman on the job would cause health and safety risks was based not on empirical data or fact, but on stereotypes. It found that the employer treated the announcement of her pregnancy as though the woman was announcing a disability. The decision to terminate the woman’s employment when she had no income due to the discrimination and was forced to look for another job was further discrimination linked to her pregnancy.
Even where a woman may be accommodated due to pregnancy complications by being given a leave of absence, the employer is not entitled to assume that she will not be coming back to work. As part of the accommodation process, the employee should let the employer know about her plans for coming back to work. However, before making an assumption that an employee is not coming back to work, the employer has an obligation to clarify with her first. 
If an employer perceives that a woman’s poor work performance is related to her pregnancy (e.g. an employee is less productive due to fatigue), it must inquire about this relationship and explore accommodation options before using discipline or terminating her employment.
Example: An employee suffered a miscarriage while she was at work, and needed surgery to deal with the complications that resulted. Because of this, she was absent a total of 3.5 days. Upon her return to work, she was dismissed from her job. The reasons given were excessive absenteeism and performance problems. The HRTO found that her employers did not document a pattern of absenteeism, except for the doctor's appointments related to her pregnancy and the time off she needed due to her miscarriage. It also found that while there were some performance problems, the employer did not follow their progressive discipline policy, assess whether these performance issues were connected to the employee’s pregnancy, and determine if accommodation was required. The HRTO concluded that the woman’s pregnancy and its complications were factors in her termination, and this was discriminatory.
It is important that employers have good human resource practices such as documenting performance concerns and engaging in progressive performance management. In such circumstances, it may be easier for an employer to show that a woman’s employment was terminated due to performance concerns or legitimate business reasons and not for reasons related to her pregnancy. A failure to do so may result in an adverse inference being drawn.
7.3. Health-related absences and benefit plans
What follows below is a discussion of the human rights aspects of pregnancy-related leaves. For information about employment standards and employment insurance requirements and entitlements, consult with the provincial Ministry of Labour and the federal Services Canada.
Health-related absences from work and benefit plans are the subject of employment standards and employment insurance legislation, as well as human rights law. Section 25(2) of the Code states that group insurance contracts between employers and insurers do not violate the equal treatment provisions of the Code with respect to age, sex, marital status or family status, as long as they comply with the ESA and its Regulations. However, no provisions permitting differential treatment of health-related absences because of pregnancy during maternity leave have been included in the Regulations under the current ESA, and the current Regulations require employers to provide the same benefit entitlements to employees on pregnancy or parental leave as are provided to employees who are on other types of leave.
As a general principle, once an employer decides to provide an employee benefit package, they must do so in a non-discriminatory way. Exclusions from benefit plans that disproportionately affect a group identified under the Code will violate human rights law, unless there is a bona fide reason.
The courts have recognized that pregnancy and childbirth place unique demands on women. Giving special maternity benefits to pregnant women that are not available to other parents has been upheld by the courts as non-discriminatory, insofar as these benefits exist to recognize the special physical and psychological needs and demands on pregnant women, including the physical changes and risks associated with pregnancy; the profound physical demands of childbirth; the recovery needs of the post-partum period; and the demands associated with breastfeeding. However, leave programs or benefit policies that are based on stereotypical gender roles or assumptions based on family status will be subject to human rights challenges.
The Supreme Court of Canada has held that while pregnancy is not an illness or disability, it is a valid health-related reason for absence from work. Therefore, pregnant employees with health-related needs should not be treated less favourably than employees who are absent from work for other health-related reasons, such as illness, accident or disability. This applies at any stage of a pregnancy.
“Health” is defined broadly to include:
- The physical and psychological health of the woman
- The health, well-being, growth and development of the fetus
- A woman’s ability to function as a social being, interacting with her family, employer and significant others.
A “health-related absence from work” can therefore mean any absence that is related to a woman’s health, or the health and well-being of the fetus.
Where an employer has a benefit plan that compensates health-related absences or gives disability benefits to its employees, a woman is entitled to disability benefits during that portion of the pregnancy or parental leave that she is unable to work for health reasons related to the pregnancy and childbirth. Payment must begin as soon as the pregnant woman is away from the workplace for a health-related reason. Any health-related portion of maternity leave is to be treated the same as other health-related leaves such as a sick leave or disability leave. The employee should be compensated at substantially the same level and should be subject to the same conditions as an employee who becomes ill, such as the requirement to provide a medical confirmation for the absence. Pregnant employees are to be compensated for the full period of their health-related absence, whether it occurs during the pre-natal or post-natal period, and including recovery from childbirth.
Different women have different medical and physiological needs related to pregnancy and childbirth depending on their circumstances. For example, the time required to recover from childbirth varies. Because women respond differently to pregnancy, requests for health-related absences should generally be assessed and granted on an individual basis. Pregnant employees who require leave for health-related pregnancy concerns should follow the proof-of-claim procedures of the employer’s benefit plan to establish that the health-related absence is valid.
A Divisional Court decision, Crook v. Ontario Cancer Treatment and Research Foundation, confirmed a Board of Inquiry’s decision that sick leave benefits should be available, for health-related reasons, to a woman who has recently given birth when she has chosen not to go on maternity leave under the ESA.
Finally, a woman may have health problems related to her pregnancy that force her to be away from work before or after her pregnancy or parental leave. She can access health benefits under a workplace sick or disability plan in this situation. However, she should check with Employment Standards at the Ministry of Labour because her decision to take short- or long-term disability leave may affect her right to take pregnancy and/or parental leave. There are strict rules about when she is entitled to take pregnancy or parental leave and when she must notify her employer. The duty to accommodate under the Code operates alongside employment standards entitlement. For example, the Code may require employers to provide leaves of absence greater than those outlined in the ESA, where there is a valid pregnancy-related reason.
Women on maternity leave continue to be entitled to other benefits under employment-related benefit plans including pension, life insurance, accidental death, extended health and dental plans. Employers are also required to continue to make contributions to such plans, so long as employees continue to make their contributions, as required.
 Human Rights Code, supra note 26, s. 47(2).
 Employment Standards Act 2000, S.O. 2000, c.41, ss.46-4 [ESA].
 Ibid, ss. 48-49.
 In Henderson v. Marquest Asset Management Inc., 2010 CanLII 34120 (ON LRB), the Ontario Labour Relations Board (OLRB) found that the employer breached s. 53 of the ESA when it terminated the employment of a woman who took a maternity leave, and retained the person hired to replace her while she was on leave. The OLRB confirmed that a woman should not be disadvantaged by taking a maternity or parental leave, even if the leave results in the company finding an employee they prefer. This type of situation may also violate human rights laws; see
Su v. Coniston 2011 BCHRT 223 (CanLII).
 ESA, supra note 97, ss. 51-53.
 Ibid, s. 74. Employees considering filing a claim that their employer has breached the ESA should be aware that this may affect any human rights application they make to the HRTO. See the OHRC’s Human rights obligations related to pregnancy and breastfeeding: Case law review, supra note 3, for more information.
 In Bickell, supra note 7, the HRTO found that a waitress was discriminated against when her shifts were reduced and she was eventually dismissed from her employment. This happened because her employer said she was getting “too big to do the job,” despite her having a doctor’s note confirming she could still work (at para. 17). See also Knibbs, supra note 84; Splane v. Ultimate Fitness (2011), CHRR Doc. 11-0695, 2011 HRTO 195; and Sutton v. Best Western Tower Inn, 2010 BCHRT 314 (CanLII).
 In Peart, supra note 17, the HRTO found that the employer’s perception that the applicant was using her pregnancy as an excuse not to work was a factor in terminating her employment.
 In Phillips v. Distinctive Vertical Venetians Mfg. Ltd. (2006), CHRR Doc. 06-853 (Sask. H.R.T.), a Tribunal ruled that the onus is on the employer to clarify if there is any confusion about whether an employee intends to come back to work after a maternity leave. See also Su, supra note 99; Keeper-Anderson v. Southern Chiefs Organization Inc. (2008), CHRR Doc. 08-379, 2008 CHRT 26.
 Charbonneau, supra note 11; de Lisser v. Traveland Leisure Vehicles Ltd. 2009 BCHRT 36 (CanLII).
 Charbonneau, supra note 11. In de Lisser, ibid., the BCHRT found that the employer’s requirement that a replacement for a maternity leave (who was also pregnant) be available to work the entire duration of the leave was not a bona fide requirement. In Guay, supra note 39, the HRTO found that a newly hired employee was dismissed in part because there was a perception that there would not be enough time to train her before her pregnancy leave.
 Maciel, supra note 25; see also Dorvault v. Ital Décor Ltd. (No. 3), 2005 BCHRT 148, 52 C.H.R.R. D/136.
 Vaid, supra note 50.
 Hobbs v. Hamel, The Cleaning House Ltd., 2012 HRTO 1068 (CanLII).
 This could also include withholding the required job evaluations. See Gilmar, supra note 16.
 Brown, supra note 28; In Kern v. Human Resources Capital Group Inc., 2011 HRTO 144 (CanLII), the HRTO agreed, saying:
As set out in the excerpt from the Commission’s [Policy on discrimination because of pregnancy and breastfeeding, 2008], it would be discriminatory to limit or withhold employment opportunities from her while on leave. In this case, the applicant was likely entitled to ask for and receive information about potential opportunities for which she might apply. Whether she ended her leave early or not would be a matter for her to decide. She was entitled to the information necessary to make that kind of choice (at para. 51).
However, the HRTO concluded, based on the facts of the case, that the applicant did not experience discrimination as there were no opportunities that should have been brought to her attention.
 Woo v. Alberta (Human Rights and Citizenship Commission), 2003 ABQB 632, 49 C.H.R.R. D/510.
 Parry v. Vanwest College Ltd., 2005 BCHRT 310, 53 C.H.R.R. D/178; Su, supra note 99.
 In Brown, supra note 28, the BC Human Rights Tribunal noted, “Being on maternity leave does not disentitle a person from being consulted about changes to the workplace, particularly those which may have a direct effect on [her]” (at para. 1109). Further, “…the lost opportunity
to have input is itself adverse, and intimately connected to her being on maternity leave.”
(at para. 1116).
 Brown, supra note 28.
 In Ong v. Poya Organics & Spa Ltd., 2012 HRTO 2058 (CanLII), the HRTO found that the applicant’s employment was terminated the day after revealing her pregnancy, and that her employer knew she was pregnant. See also Maciel, supra note 25; Kooner-Rilcof v. BNA Smart Payment Systems, Ltd. (2012), CHRR Doc. 12-0263, 2012 BCHRT 263 (CanLII); Guay, supra note 39; Mann v. JACE Holdings Ltd. (2012), CHRR Doc. 12-0234, 2012 BCHRT 234.
 Bickell, supra note 7.
 Splane, supra note 102; Osvald, supra note 14.
 Korkola, supra note 71.
 Shinozaki, supra note 17;
 Graham,supra note 7.
 Brown, supra note 28.
 Graham,supra note 7.
 Korkola, supra note 71; Purres, supra note 15; Williams, supra note 75.
 Keeper-Anderson, supra note 104.
 Su, supra note 99.
 Gilmar, supra note 16.
 Dodds v. Sharks Sports Pub, 2007 HRTO 17 (CanLII), CHRR Doc. 07-329.
 See Comeau, supra note 42; Kooner-Rilcof, supra note 116; Mann, supra note 116.
 Comeau, supra note 42.
 Kooner-Rilcof, supra note 116.
 Ibid. at para. 59.
 Parry, supra note 113; Su, supra note 99.
 Su, ibid., at para 54.
 Su, ibid. The BCHRT stated that if the employer was uncertain of what the complainant’s plans were about the duration of her leave, it should have asked her to clarify. Without making inquiries, it was not open to the employer to assume that the complainant was only taking a 17-week maternity leave and to further assume that she had abandoned her position when she did not return after that time period ended.
 See Emrick Plastics v. Ontario (Human Rights Commission) (1992), 16 C.H.R.R. D/300 (Ont. Div. Ct.) appeal from (1990), 14 C.H.R.R. D/68 (Ont. Bd. of Inq.)
 Graham, supra note 7.
Gonneau, supra note 83.
 Peart, supra note 17; Yap, supra note 71; Splane, supra note 102; Sutton, supra note 102.
 Osvald, supra note 14.
 For example, in Comeau, supra note 42, the HRTO found that although the applicant’s employment was terminated while she was pregnant, there was evidence of documented performance concerns before she advised the employer of her pregnancy and that despite coaching she was incapable of performing the duties of her position. The HRTO relied on the performance logs that the employer produced to substantiate its claim of ongoing performance issues.
 O. Reg. 286/01, s. 10.
 See Schafer v. Canada (Attorney General) 1997, 149 D.L.R. (4th) 705, (Ont. C.A.), (leave to appeal to the Supreme Court of Canada denied on January 29, 1998), and Tomasson v. Canada (Attorney General), 2007 FCA 265.
 In 2000, a male doctor practicing in Ontario applied to receive benefits under the Ontario Medical Association’s Maternity Leave Benefit Program (MBLP), funded by the Ministry of Health, as he was staying at home to care for his newborn child while his wife returned to work. His application was denied, as the program only granted benefits to female doctors. Complaints were filed against the Ontario Medical Association and the Ministry of Health shortly thereafter, citing discrimination based on sex. A stated purpose of the MBLP was to give female doctors the opportunity to “bond” and spend time with their newborn babies by reducing the financial hardship of being away from their practice. The OHRC argued that this bonding opportunity should also be made available to male doctors. An agreement was reached to replace the MBLP with the Pregnancy and Parental Leave Benefits Program (PPLBP), under which female doctors continue to be entitled to receive benefits for pregnancy leave, but where both male and female doctors are now entitled to apply for parental leave benefits to spend time with their newborn or newly adopted children. See OHRC, “Commission settlement guarantees gender equality for doctors seeking parental leave,” (28 September 2006), online: OHRC www.ohrc.on.ca/en/news_centre/commission-settlement-guarantees-gender-eq....
 Brooks, supra note 4.
 Parcels, supra note 9.
 Brooks, supra note 4; Parcels, supra note 9; see further Stagg v. Intercontinental Packers Ltd. (1992), 18 C.H.R.R. D/392 (Sask. Bd. of Inq.).
 Ontario Cancer Treatment & Research Foundation v. Ontario (Human Rights Commission) (1998), 34 C.C.E.L. (2d) 56, 108 O.A.C. 289 (Ont. Div. Ct.); upholding Crook v. Ontario Cancer Treatment & Research Foundation (No. 3) (1996), 30 C.H.R.R. D/104 (Ont. Bd. of Inq.).
 ESA, supra note 97, ss. 51(1)-(2).
 ESA, supra note 97, s. 51(3).