Human rights obligations related to pregnancy and breastfeeding: Case law review

Executive summary

This case law review looks at important developments in the law dealing with discrimination based on pregnancy and breastfeeding between 2008 and January 2014.[1] The discussion of the law in Ontario is intended as a resource, to be read along with the Ontario Human Rights Commission’s Policy on Preventing Discrimination because of Pregnancy and Breastfeeding (the Policy)[2], about the rights of women[3] who are pregnant, planning to become pregnant, who have had a baby or who are breastfeeding. However, it is not legal advice.

In the past five years there have been over forty new Human Rights Tribunal of Ontario (the HRTO) decisions which have considered whether a woman has experienced discrimination in relation to pregnancy and breastfeeding.[4] There have also been many other decisions from across Canada, but legal developments that may have an impact or be relevant in Ontario are the focus of this document. Most of the reported decisions deal with claims of discrimination based on pregnancy in employment. However, we know that issues do arise in other areas including services and housing. Many of the legal principles from the employment cases apply to these areas as well.

A review of the case law indicates that there have been few major changes to the law with regard to pregnancy discrimination in the last five years. However, it is concerning that the decisions indicate that discrimination related to pregnancy and breastfeeding is still an issue and that some employers, housing and service providers continue to be unaware of their obligations under the Ontario Human Rights Code (the “Code”). For example, there are a number of decisions that have found a woman’s pregnancy was a factor in the employer’s decision to terminate her employment. This is clearly contrary to the Code. As well, there are cases that have found that the employer breached the Code by unilaterally changing the conditions of a woman’s employment, for example by scheduling her for fewer shifts, because of a stereotypical view of what women cannot do, or should not be doing, while pregnant. In some of these cases, the woman had even provided a doctor’s note confirming that she could still do the job as she had always done and that the change imposed by the employer was not needed. These decisions have led the HRTO to observe on more than one occasion:

In this day and age it is still surprising to hear that a pregnant employee, who has medical documentation supporting that she can work the duration of her pregnancy, is being subjected to unilaterally imposed changes to her employment in the form of reduced shifts and hours, and is also terminated for no other reason but for her pregnancy.[5]

There are other decisions that have found that where a woman did have actual needs related to her pregnancy and told her employer, she was not accommodated. In these decisions, the HRTO found that the employer had simply assumed that it could not provide the accommodation without undue hardship, without any serious consideration of whether this was actually the case. For example, in one case, the HRTO rejected an employer’s argument that placing a stool behind a counter so a pregnant woman could sit down while serving customers would be a health and safety risk.[6]

At the same time, there are many cases confirming that an employer is still able to discipline or dismiss an employee who is pregnant, provided it has legitimate reasons for doing so and the decision is in no way related to the fact that the woman is, was, or is planning to become pregnant. These cases illustrate the importance of good human resources practices, such as documenting performance concerns and engaging in progressive performance management. A termination that coincides with a pregnancy is more likely to be found to be linked to the pregnancy where the employer cannot bring forward evidence to show that performance problems were documented and the employee was warned.

The case law confirms the Commission’s Policy position that pregnancy includes the fact that a woman is pregnant, was pregnant or is planning or trying to conceive. It also includes abortions, miscarriage, complications arising from the pregnancy or miscarriage[7] and the fact that the woman is planning to take a maternity leave.[8] Tribunals have made it clear that where a woman experiences adverse treatment based on her pregnancy, either directly or because of a neutral requirement that has an adverse effect, this is prima facie discrimination contrary to the Code. As well, human rights tribunals have said that if the timing of the negative treatment, such as termination of employment, coincides with a woman revealing her pregnancy or asking to take a maternity leave, the suspicious timing requires even more careful scrutiny.[9]

Once prima facie discrimination has been shown, unless the employer can establish a non-discriminatory explanation or bona fide occupational requirement defence, showing that the unequal treatment is justified due to cost or health and safety concerns, a violation of the Code will be found. The cases reviewed suggest that a BFR defence for pregnancy discrimination is rarely made out. Even if there are health and safety concerns, they can usually be dealt with through accommodation (see below).

Tribunals that have found discrimination based on pregnancy have ordered a variety of remedies. Most often, the woman is awarded money to compensate her for the impact of the discrimination on her dignity, feelings and self-respect. Decision-makers have considered a variety of factors, discussed in greater detail below, in calculating damages such as the particular physical, psychological, emotional and financial vulnerability of a pregnant woman who experiences discrimination. The HRTO has awarded anywhere from $2000 where a woman did not lose her employment as a result of the discrimination to $20,000 where the discrimination was particularly serious and the applicant was able to show that the loss of her employment had a severe impact on her health, well-being and financial circumstances.

As well, where the discrimination has resulted in lost wages or benefits, tribunals have ordered the employer to make up for these financial losses. However, it is important to note that an award for lost wages and benefits is not automatic. Some decision-makers have denied claims for lost wages and benefits where the claimant has not demonstrated her actual losses. As many decision-makers are unwilling to speculate as to lost wages and benefits, it may not be enough to simply claim these types of remedies, without proof. There must be some evidence of what the woman would have earned had the discrimination not occurred.

The following sections provide more detailed information in relation to the issues discussed above.

What is covered under discrimination on the basis of pregnancy?

Section 10(2) of the Code states that “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.” The Commission’s Policy notes that “pregnancy” includes the process of trying to become pregnant and pregnancy from conception up to the period following childbirth, the post-delivery period, and breastfeeding. It includes the range of experiences related to pregnancy including complications and conditions that result from pregnancy, abortion, miscarriage or stillbirth.

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.”[10]
• has an abortion or experiences complications related to an abortion[11]
• has a miscarriage (or stillbirth) or experiences complications related to miscarriage (or stillbirth)[12]
• experiences complications related to pregnancy[13]
• lacks energy due to pregnancy[14]
• has too many absences related to pregnancy[15]
• is seen as “too big,” “fat” or is unable to wear a form fitting uniform[16]
• should not be working on the incorrect assumption it is not safe
• is breastfeeding.

This list is not exhaustive and should be read along with the Policy which cites further case law.

The British Columbia Human Rights Tribunal has also confirmed that discrimination based on pregnancy occurs when an employer disapproves of a woman’s personal circumstances or her relationship with the father of the child. For example, in Ballendine v. Willoughby (No. 5)[17] the British Columbia Human Rights Tribunal found that a woman experienced discrimination based on pregnancy when her employment was terminated in part because the employer was upset with the relationship that led to the pregnancy and was concerned about its impact in the workplace. The father of the complainant’s twins was a customer of the pub owned by the respondents and also a married man. The respondent had been receiving calls about the relationship between the complainant and the pub customer from the customer’s wife. The BC Tribunal concluded, after considering all the evidence, that it was reasonable to infer that the pregnancy was a factor in the woman’s termination. It was clear that the respondents were upset with the complainant’s relationship with the pub customer and its impact in the workplace. The disclosure of the pregnancy represented a greater potential disruption to the workplace and a “personal drama” that the respondents no longer wanted to play a part in.

In another case, Gilmar v. Alexis Nakota Sioux Nation Board of Education,[18] the Canadian Human Rights Tribunal considered a claim by a teacher that her pregnancy was a factor in the Board’s decision not to offer her another teaching contract after starting her maternity leave. The Tribunal noted that the Director of Education’s impression of the complainant’s work performance was tainted by her personal bias concerning the way the complainant was handling her pregnancy and parenting of her baby. In particular, the Director of Education’s personal opinions regarding how long a mother should take for her maternity leave were irrelevant but, nevertheless, influenced how the Board treated the complainant.

The Canadian Human Rights Tribunal also found that the Board’s assessment of the complainant’s “suitability and fit” as a teacher were improperly impacted by the impression that the complainant lacked energy during her pregnancy and was not attending enough evening community events, despite the fact that it was acknowledged that this would be more difficult while expecting. The Tribunal noted that these concerns about her performance were either pre-textual or were related to the complainant’s lower energy levels and therefore based on her pregnancy.

It is therefore clear that human rights decision-makers continue to accept a broad interpretation of the right to be free from discrimination based on pregnancy and that the full range of experiences and circumstances that result from childbearing are covered under human rights laws.

Refusing to employ a woman who is pregnant

Under 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. The cases confirm that despite the potential for some inconvenience to an employer from having to train a new employee and then train someone to fill in for her while on a maternity leave, this is not a valid justification for deciding not to hire a pregnant woman.

In Charbonneau v. Atelier Salon & Spa,[19] a woman who had previously worked at the salon, but left to pursue another employment opportunity, later contacted the salon to ask if they would re-hire her. She alleged that they told her that they would not re-hire her because she was pregnant and would be going on maternity leave. The salon argued that there was no need for an additional stylist when the applicant contacted them.

The HRTO found that while there was evidence to support the salon’s argument that there was not enough work to justify hiring another stylist at the time, there was also some evidence that the woman’s pregnancy was a factor that contributed to the decision not to re-hire her. The HRTO accepted that before she left the salon, she was encouraged to contact them if she left her other job. The HRTO also found that rehiring someone who was good, even if there was not much work, was consistent with the salon’s past practice of allowing stylists the opportunity to build up a clientele. Finally, the HRTO drew an adverse inference from the fact that the respondents did not deny or contradict the applicant’s evidence with regard to what was said about her pregnancy and impending maternity leave in the conversations that took place between them.

Similarly, in de Lisser v. Traveland Leisure Vehicles Ltd.,[20] the British Columbia Human Rights Tribunal found that an employer discriminated when it would not allow a pregnant woman to cover another employee’s maternity leave because she would be going on leave herself before the end of the one year period. The complainant was going to be filling in for someone else who was going on maternity leave when she learned that she was also pregnant. The respondent made it clear that it would no longer consider the complainant for the maternity leave replacement position because she would not be available for the entire period that needed to be covered due to her own maternity leave. Prima facie discrimination was therefore established.

The BCHRT found that the employer’s requirement that a replacement for a maternity leave be available to work the entire duration of the leave was not a bona fide requirement (or BFR). The respondent employer did not make meaningful inquiries concerning whether the complainant could still take over the maternity leave position despite her pregnancy. The Tribunal said that the test for establishing a BFR[21] requires more than a “knee-jerk” reaction to the impact of an employee’s pregnancy on the company’s plans. As well, the employer had not provided evidence that it could not find someone to replace the complainant when she needed to start her own maternity leave.

Discrimination was also found when 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. In Guay v. 1481879 Ontario Inc.[22], the HRTO considered a termination document sent to the employment agency that had placed the applicant with the respondent company which said: “Employer found out Jesse was pregnant and felt that there was not enough time to properly train.” The HRTO accepted that performance issues likely contributed to the decision to terminate the applicant’s employment but also found that her pregnancy was a factor that contributed significantly to the decision.

Some employers may believe that they have the right not to hire a pregnant woman. However, the law is clear that refusing to hire or train a woman for reasons related to her pregnancy is discrimination contrary to the Code.

Was pregnancy a factor in a decision to terminate employment?

One of the most frequent types of human rights claims is an allegation that a woman’s pregnancy was a factor in a decision to dismiss her from her job. In some cases, there is a question as to whether the employer knew or had reason to believe the woman was pregnant (or trying to become pregnant) when her employment was terminated. In several instances, the HRTO and other human rights tribunals have found, based on the evidence and the credibility of the witnesses, that the employer did not know and had no way of knowing that the employee was pregnant (or trying to become pregnant) when the decision to terminate was made.[23] In such situations, pregnancy could not have been a factor in the decision to dismiss the employee.

These cases tend to be based on their individual facts and considerations. However, generally, human rights decision-makers have not expected an employer to guess early on in a pregnancy that a woman is pregnant, unless the employer has been told of the pregnancy or the circumstances make it obvious.

In King v. S.P. Data Capital,[24] a woman who was 6 weeks pregnant was employed as a telemarketer for less than a month when she resigned her employment during a training session. She alleged that the trainer who was conducting the training made remarks to the effect that she used the washroom too often and ate too much and that this indicated that the trainer did not want a pregnant woman working for the company. However, the applicant also acknowledged that that she had not told the trainer or anyone in management of her pregnancy. The HRTO stated that if a woman claims disadvantageous treatment because of pregnancy she must show that the respondent knew or ought to have known of the pregnancy. In this case, the pregnancy was not obvious at six weeks and the woman had not established that the employer knew or ought to have known that she was pregnant. The Tribunal noted that comments about eating too much and using the washroom could, in some circumstances, be related to the physical effects of pregnancy and might form part of the evidence in a case of discrimination on the basis of pregnancy. However, in the circumstances of this case, the applicant did not establish that such remarks were made.

The Alberta Human Rights Tribunal found that the fact that an employee does not drink alcohol, takes more frequent washroom breaks, is nauseated, changes her way of dressing, gains weight or develops a “small tummy” does not necessarily support an inference that the employer knew she was pregnant.[25] As well, tribunals may not be willing to assume, without evidence, that because a woman told some of her colleagues in the workplace that she was expecting, this information was passed onto someone in management with decision-making authority.[26] Therefore, in order for a woman to be able to claim the protection of the Code, there may need to be some evidence that the employer knew of the pregnancy, either because the employer was told directly or the circumstances were such that it would be obvious.

While a woman claiming discrimination based on pregnancy may have to show that the employer, service provider or other respondent knew or ought to have known of the pregnancy, in most cases the respondent’s knowledge of the pregnancy is not seriously in dispute. Where the employer has knowledge of a woman’s pregnancy and she experiences a negative employment consequence, most often termination of her employment, human rights tribunals have noted that the situation requires careful scrutiny to ensure that the pregnancy was not a factor in the treatment she received.[27] This is particularly the case where the termination coincides closely with a woman revealing her pregnancy, requesting a maternity leave or advising that she will be returning from a maternity leave.[28] Decision makers have even said that the suspicious timing[29] creates an inference that the pregnancy was a factor in the termination saying “the timing alone indicates a nexus, and demands an explanation.”[30]

In several cases, the circumstances surrounding the termination have allowed decision-makers to draw an inference that the pregnancy was a factor in the termination.[31] In Maciel v. Fashion Coiffures Ltd.,[32] a woman who was four months pregnant and had been hired to work as a receptionist in several hair salons owned by the respondent was fired after her first day of work. The applicant’s evidence was that her employment was terminated after she revealed her pregnancy. The respondent argued that it did not know she was pregnant but rather terminated her employment because she asked to work part-time. The HRTO had to determine which version of events to accept. Overall, the applicant’s version of events was found to be more credible. Among other things, the HRTO found that there was no reason why the woman would have requested part-time employment after having accepted a full-time position. She did not have other commitments on her time. Moreover, if the applicant had only worked part-time she would not have enough hours to qualify for Employment Insurance (EI) benefits. Therefore, there were a number of reasons why the respondent’s version of events was less credible.

In another case, a part-time employee in a sandwich shop franchise experienced discrimination based on pregnancy after being dismissed for not reporting for work even though she had communicated with her employer that she would not be able to attend work for medical reasons related to her pregnancy; Chowdhury v. 2023628 Ontario Inc.[33]

It is also worth noting that the HRTO has made it clear that probationary employees have equal protection from discrimination based on pregnancy. Although some employers may mistakenly believe that they can terminate the employment of someone on probation for any reason and without justification, this is not the case if the reason is connected to the Code.

For example, in Osvald v. Videocomm Technologies Inc., the HRTO found that absences related to the applicant’s pregnancy, eventual miscarriage and related complications contributed to the employer’s perception of excessive absenteeism. This perception was a consideration in the decision to terminate her employment:

There is no reasonable explanation for carrying out the termination on the day of her return from the miscarriage and subsequent surgery. In my view, Ms. Ferjo's decision to terminate the complainant when she did was based at least in part on the complainant's absences which were directly linked to her pregnancy.[34]

The employer also argued that there were concerns with the applicant’s performance and that it had the right to terminate the applicant because she was a probationary employee. The HRTO drew an adverse inference from the employer’s inability to produce documents supporting the alleged performance concerns and the employer’s failure to follow its progressive discipline policy. It noted that the employer had not complied with its obligation to raise performance issues and absences with the applicant, assess whether they were connected in any way to the complainant’s pregnancy, and determine if any accommodation was required.

With regard to the employer’s mistaken belief that it had a right to terminate a probationary employee without providing any justification, the HRTO said that the respondent had “misapprehended its obligation under the Code.”[35] The HRTO confirmed that if factors related to pregnancy are even one consideration in a decision to dismiss a probationary or non-probationary employee, discrimination will be found.

This case is one of many in which tribunals have noted that employers may not be fully aware of their human rights obligations. In several decisions, the HRTO expressed concern that “in this day and age it is still surprising to hear that a pregnant employee, who has medical documentation supporting that she can work the duration of her pregnancy, is being subjected to unilaterally imposed changes to her employment in the form of reduced shifts and hours and is also terminated for no other reason but for her pregnancy.” In one such decision, the employer reduced a waitress’ shifts and eventually terminated her employment because she was getting “too big to do the job.” The applicant was also subjected to reprisal when she objected to the cuts to her shifts and hours and advised the employer that such changes were contrary to the law.[36]

There are also examples where despite the fact that a woman’s employment was terminated while she was pregnant or after having taken a maternity leave, no discrimination was found. In these decisions, the employer was able show that there were performance issues justifying the termination and that the pregnancy was not a consideration.[37] Other non-discriminatory explanations for terminating a pregnant woman have been accepted such as where a woman’s position is no longer required for legitimate business reasons,[38] or because of downsizing due to a slowdown in business.[39] However, in these cases tribunals look carefully for objective evidence to support the non-discriminatory explanation and to make sure that it is not just a pretext to fire a woman who is pregnant or has taken a maternity leave.

Several decisions have suggested that employers must consider whether performance concerns are linked to the pregnancy. For example, in Peart v. Distinct HealthCare Services Inc.,[40] the employer’s perception that the applicant was using her pregnancy as an excuse not to work was a factor in the decision to terminate her employment. The HRTO found that given the timing of the alleged performance issues and productivity concerns, arising as they did during the later stages of the applicant’s pregnancy, the employer was obliged to consider whether they arose from the applicant’s pregnancy and, if so, explore accommodation to the point of undue hardship. In Osvald v. Videocomm Technologies Inc., the HRTO similarly suggested that the employer should have raised alleged performance concerns with the applicant, assessed whether they were connected to her pregnancy and determined whether any accommodation was required. The HRTO also found that the employer had not documented the performance deficiencies or followed its progressive discipline policy.[41]

In another case, the HRTO found that the evidence that the applicant had breached store policies was compelling and that the respondent was a large sophisticated employer with a good track record of accommodating many pregnant employees.[42]

For this reason, it is important for employers to engage in good human resource practices such as documenting performance concerns and engaging in progressive performance management. In such circumstances, it will be easier for an employer to demonstrate that a woman was terminated due to performance concerns or legitimate business reasons and not for reasons related to her pregnancy.[43] A failure to do so may result in an adverse inference being drawn.

Other adverse treatment based on pregnancy

While termination cases remain the most common, there are some decisions in which tribunals have considered whether other adverse treatment amounted to discrimination based on pregnancy. In several examples, the employer stopped scheduling a pregnant woman or effectively forced her to take a leave despite the fact she could continue to work.

In Knibbs v. Brant Artillery Gunners Club Inc.,[44] an employer would not permit a pregnant woman to work nights believing it is unsafe for a pregnant woman to work alone at night. Even though she submitted a doctor’s note saying she could work at night, the applicant’s hours were not restored. The respondent’s only justification for this direct discrimination was that it was exercising “due diligence.” In finding discrimination, the HRTO found that the employer acted on stereotypical views about pregnant women.

In Graham v. 3022366 Canada Inc.,[45] the HRTO confirmed that not scheduling a pregnant woman to work and forcing her to take a disability leave based on arbitrary and stereotypical assumptions was discriminatory. A woman who worked as a Mobile Patrol Officer for a security company advised her employer that she was pregnant. She was immediately told she could not work any further shifts for alleged health and safety reasons. The applicant was told to go to her family doctor to get a letter stating that the doctor reviewed her job description and that continuing to work would put the baby in danger. She was told that she could then go on short term disability leave.

The applicant felt she had no choice but to do as told by the respondent. The applicant did not consider herself disabled and felt she could go on working for some time. The applicant discovered that she was not eligible for sick benefits under the Employment Insurance Act and that her maternity leave benefits would be affected by not working in the months leading up to the baby’s birth. The applicant asked the respondent to change the decision, but it refused.

As the applicant had no income, she was forced to take a position at another security company. The respondent then terminated her employment as she was working for a competitor.

The HRTO considered the evidence with respect to the alleged health and safety risks and found that the respondent had not made out a BFR defence. There was evidence from co-workers that they never had any physical altercations on the job and that the expectation was that at any sign of trouble, the police were to be called. The HRTO found that the respondent treated the announcement of the pregnancy as though the applicant were announcing a disability. Removing the applicant from the schedule within minutes of being informed that she was in the early stages of pregnancy was arbitrary and based on stereotypes and unsupported assumptions. The concerns about health and safety risks were not based on empirical data or facts but on stereotypes.

The decision to terminate the applicant’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.

The HRTO described the case as “troubling” and canvassed the factors that made the actions of the respondent and the impact on the applicant (such as the fact that she was a single mother) particularly serious. The applicant was awarded lost wages and $20,000 for injury to dignity, feelings and self-respect as a result of the discrimination.

Even where a woman may be having trouble attending work due to pregnancy-related complications, an employer is not entitled to assume she will not be returning to work. This was the situation in Gonneau v. Dennninger.[46] The woman could not come to work due to pregnancy-related complications. The employer went ahead and issued a Record of Employment (giving the reason for the ROE as ‘Other’ and indicating she was ‘Not returning’) without checking whether the woman would be returning. The applicant did intend to return to work when she was feeling better; however, she had not kept her employer advised as to when she anticipated she would be able to return and did not provide requested medical information.

The HRTO found that the respondent breached the Code by issuing the ROE without first seeking clarification from the applicant. However, it noted that the applicant had contributed to the situation by failing to keep the respondent advised of her status and intentions and had therefore not fulfilled her part in the accommodation process. This affected the amount of damages the applicant was awarded because of the discrimination.

Telling a pregnant woman that her hours of work may be reduced and that she may be replaced is also discrimination based on pregnancy.[47]

Changes to the workplace and lost opportunities

The Commission’s Policy states that women who are on maternity leaves should be kept informed of major developments and workplace opportunities. In Kern v. Human Resources Capital Group Inc., the HRTO agreed with the Commission’s statement saying:[48]

As set out in the excerpt from the Commission’s policy, it would be discriminatory to limit or withhold employment opportunities from [the applicant] 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.

However, the Tribunal 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.

The BC Tribunal has also confirmed that while employers are entitled to make legitimate business-related decisions which may affect the configuration of the workplace to which an employee returns, a woman must not be differentially affected by those changes, or left worse off than other employees, because she is on a maternity leave.

In Brown v. PML, other employees were consulted about the changes in the workplace and were able to participate in the planning process but the complainant was not because she was on leave. The BCHRT said:[49]

Being on maternity leave does not disentitle a person from being consulted about changes in the workplace, particularly those which may have a direct effect on [her].

…

The lost opportunity to have input is itself adverse, and intimately connected to her being on maternity leave.

In Su v. Coniston,[50] the BC Tribunal said that while the employer was entitled to take reasonable steps to address the difficult economic reality it was facing, it was not entitled to refuse to allow the complainant to return to her position when another person was occupying the position and performing work that, but for her leave, the complainant would have been performing. Consistent with decisions under Ontario’s Employment Standards Act, discussed below, this decision confirms that an employer cannot refuse to allow a woman to return to her pre-maternity leave position and keep the person it hired to replace her instead.

Accommodating needs related to pregnancy

Several cases have considered whether needs related to a woman’s pregnancy were adequately accommodated. In these decisions, tribunals have found that the pregnant woman was not appropriately accommodated and that the organization responsible for accommodation did not demonstrate that meeting the woman’s needs would have resulted in undue hardship. Many of the required accommodations would have been relatively easy and inexpensive to put in place, such as providing a chair or a stool for a woman to sit on to take a break from standing. As well, the decision-makers found that those responsible for accommodation failed to meet their procedural obligation to consider options for meeting the needs of a pregnant woman. Instead, they quickly assumed that the needs could not be accommodated. This may suggest that the procedural and substantive duty to accommodate a woman’s pregnancy to the point of undue hardship may not be well understood.

Two decisions dealt with women who were experiencing complications from their pregnancy that required them to avoid prolonged standing. In both cases, the employer failed to consider options that would allow the pregnant woman to fulfill the essential duties of her job without prolonged standing. In each case, the employer believed that allowing the woman to sit down would cause health and safety issues that would amount to undue hardship but was unable to demonstrate this through credible, objective evidence.

In Purres v. London Athletic Club (South) Inc.,[51] the applicant, a customer service associate who worked behind the counter at a health club, developed swelling in her feet and pain in her legs. Her doctor provided a note saying that she should “avoid prolonged standing and would benefit from being able to sit/stand alternatively.” The applicant asked to be able to sit while serving customers; however, the employer said that placing a stool behind the counter would be a safety issue. As the applicant did not know of her right to be accommodated, she felt she had no choice but to ask for part-time hours. After the applicant contacted the Ministry of Labour and learned of her right to be accommodated, she requested reinstatement to full-time hours, with accommodation. The request for full-time hours was denied and the employer instead offered to allow her to sit at a table and do paper work during her shifts, but only when it was not busy behind the counter.

The HRTO found that the employer had failed in its procedural duty to accommodate as it took no steps to consider the medical note, discuss the applicant’s accommodation needs, measure the space behind the counter or test out a chair or stool. With regard to the substantive duty to accommodate, the HRTO also expressed doubt as to whether any significant safety risk would have resulted from placing a stool behind the counter. The HRTO was also critical of the employer’s refusal to consider returning the applicant to full-time hours once she clearly asserted her right to accommodation.

In Williams v. Hudson's Bay Co.,[52] the HRTO found that an employer failed to adequately accommodate the applicant’s need to avoid prolonged standing. The applicant worked on a conveyor line. The applicant had been sitting down on plastic containers but this was unsafe so she wheeled in a chair from another area. The employer did not allow her to use this chair on the basis it was a safety issue. In particular, the employer was concerned that the chair would block the way in an emergency. The applicant was told to instead take breaks by sitting in a First Aid room. However, as this room was far away, the applicant expressed concerns that this was not an appropriate accommodation.

The Tribunal cited the OHRC’s Policy and Guidelines on Disability and the Duty to Accommodate for its discussion on assessing health and safety risks. The HRTO noted that for a health and safety concern to amount to an undue hardship, the concern must be genuine and significant enough that it outweighs the benefits of the requested accommodation. The HRTO accepted that there was a safety concern with a chair that could block an exit but found that the concern could have been mitigated or that other options could have been explored. With regard to the suggestion that the applicant walk to the First Aid room to take sitting breaks, the HRTO said:[53]

While accommodation under the Code does not have to result in a perfect solution, it should involve a process that best reconciles the various competing interests and factors to provide a solution that minimizes inconvenience and hardship and also recognizes the dignity of the accommodated person[.]

The HRTO also suggested that where an employer contracts with an outside company that provides employers with assistance in managing disability claims, it is still responsible if the outside company does not appropriately manage the accommodation request.

The difficulties that the applicant experienced in asserting her need for accommodation contributed to anxiety and stress that eventually led to her doctor advising her to remain off work until the baby was born. The HRTO awarded lost earnings from the date she stopped working until she gave birth. Saying that the applicant had not led evidence regarding the impact of the discrimination, the HRTO awarded a very low amount, $2000, for injury to the applicant’s dignity, feelings and self-respect.

More recently, in Korkola v. Maid Day! Maid Day! Inc.,[54] the HRTO found that a woman who worked as a house cleaner was not accommodated to the point of undue hardship. As her pregnancy progressed, she found it harder to clean floors and bathtubs on her hands and knees. When she was assigned to clean a particularly large house on June 25, 2010, she found it difficult and requested accommodation. The respondent suggested that the applicant’s partner clean the floors and tubs and that the applicant perform other cleaning tasks. However, the applicant rejected this accommodation on the basis that it would be unfair to her partner and would be an undignified accommodation. The HRTO found that the respondent did appropriately accommodate the applicant on June 25, 2010 as the accommodation offered was consistent with the applicant’s restrictions and not undignified. The HRTO stated:[55]

An employee seeking accommodation is not entitled to the accommodation he or she prefers and is obliged to accept an offer of accommodation that meets the stipulated restrictions. Consequently I find that the applicant acted unreasonably in rejecting the offer of accommodation regarding her work on June 25, 2010.

However, the HRTO found that the respondent did not consider whether it could accommodate the applicant’s needs going forward. Rather, it took the position that if the applicant’s pregnancy prevented her from cleaning on her hands and knees, she would be unable to continue working and issued a Record of Employment indicating that she was absent from work due to illness or injury. The respondent maintained this position despite receiving medical notes indicating that the applicant could work with modifications. The HRTO found that the respondent’s requirement that floors and tubs be cleaned by hand was not a BFR and that the evidence fell short of establishing that modifying the applicant’s duties would constitute an undue hardship. The respondent could have eliminated large houses from the applicant’s schedule and considered whether it could have permitted her to clean with a mop. Instead, the applicant was never scheduled to work again.

The HRTO ordered the respondent to pay the applicant $13,000 for the injury to her dignity, feelings and self-respect and assessed her wage loss claim from the time she stopped working for the respondent until she got another job at $1962.00. The HRTO rejected the argument that the respondent was responsible for the fact that the applicant did not have a job to return to after her maternity leave as being too remote (the applicant had found another job before her maternity leave but the new employer experienced an economic downturn).

In another case, the HRTO described a supervisor who raised concerns about a pregnant woman’s ability to perform her duties as having the accommodation process “backwards.”[56] The HRTO said:

It is not the employer’s role to question a pregnant employee about whether she can perform certain duties, particularly in the absence of an indication of any actual difficulty in performing such duties. 

As well, the HRTO noted that inappropriate comments were made that the employer might face liability if the applicant slipped on snow or ice and injured herself or the fetus on her way to work:

It also, in my view, is not appropriate for an employer to raise with a pregnant employee an issue about potential responsibility for injury to her or her fetus, particularly in the absence of any actual evidence of any risk to the employee or fetus.

Harassment and poisoned environment

While most pregnancy cases involve allegations of discrimination, a few have also considered allegations of harassment. In one decision, the HRTO found that a woman had been subjected to a course of vexatious comment and conduct based on her pregnancy; Arunachalam v. Best Buy Canada Ltd.[57]

The applicant advised the respondent that she was pregnant during the job interview. She was hired and worked in the position for a month. The HRTO did not accept that her pregnancy was a factor in denial of proper training and the termination of her employment, finding instead that poor performance was the reason for the dismissal. However, the HRTO did find that her direct supervisor made harassing comments about her pregnancy including suggesting that she should not have been hired because of her pregnancy, expressing concerns about her ability to “handle” the work while pregnant, and asking whether she had taken the job to obtain pregnancy leave benefits. As well, the manager insisted that the applicant tuck in her shirt although this was difficult due to her pregnancy. This conduct was found to be harassment and $4000 in damages as well as public interest remedies were ordered. In addition to being one of the few examples of pregnancy harassment, this decision is important for its discussion of principles to be applied in quantifying damages (discussed in the section on Remedies).

In Shinozaki v. Hotlomi Spa,[58] the HRTO found that the applicant was subjected to course of vexatious comments and conduct related to changes to her body during her pregnancy. The respondent did not participate in the hearing and was therefore deemed to accept the applicant’s version of events. The applicant described a number of comments made by the personal respondent in relation to her appearance including that she looked “fat” and “ugly” and about the applicant’s “body tone.” The respondent started changing the applicant’s schedule and number of clients and eventually fired her.

The HRTO found that theowners of the spa made a number of demeaning and degrading comments to the applicant about her pregnancy. This included a number of very offensive comments to the applicant to the effect that her pregnancy was making, and would continue to make, her physically unattractive and that this in turn made her unfit for her work as a massage therapist. The HRTO inferred from the comments that the respondent wanted to have “sexy-looking” massage therapists whose physical appearance they thought would appeal to customers; and that the applicant’s pregnancy made her less desirable as an employee.

The HRTO found that that the conduct of the respondents constituted both discrimination and harassment based on sex. The comments conveyed that the applicant’s value as an employee was diminished by her pregnancy and/or the way it changed her body. The comment that the applicant, as a pregnant woman, should not be in the workforce but rather convalescing at home was clearly based on a negative stereotype about pregnant women not belonging in the workplace.

Another case, Vaid v. Freeman Formal Wear,[59] considered whether the manager of the store the applicant worked at created an unwelcome environment for her after she announced her pregnancy. The woman’s supervisor had asked her during her interview whether she was planning on starting a family. Once he learned that she was pregnant he questioned her ability to perform the job and whether the company would be liable if she slipped and fell on the way to work in the winter.

Although not specifically framed as a harassment or poisoned work environment claim, the HRTO found that the supervisor was signaling to the applicant that her pregnancy was not welcome in the workplace thereby creating an unwelcome and discriminatory work environment for the applicant in violation of the Code. The applicant was awarded $3,000 for the injury to her dignity, feelings and self-respect. Although the HRTO found that the applicant was made to feel unwelcome, it did not agree that her decision to begin her maternity leave early was the fault of the employer and declined to award any lost wages.[60]

The Canadian Human Rights Tribunal considered a claim by a woman who alleged that her employer failed to maintain an environment free from discrimination and harassment based on pregnancy.[61] The alleged harassment related to jokes that were made at a golf tournament about the complainant by a male comedian hired by the employer. The comedian made comments about the fact that the complainant had many children, had breastfed them all and the size of her breasts. Another incident occurred over a year later when the complainant was four months pregnant. While handing a Christmas gift to the complainant in front of other staff, a comment was made to the effect “I’m surprised you haven’t had a miscarriage yet with all the pressure we have put you under this year…” The CHRT found that the events were unrelated, isolated and not persistent and that a reasonable person would not consider that these incidents were sufficiently serious or repetitive to poison the woman’s work environment.

Systemic and institutional discrimination

While there tend not to be many examples of systemic discrimination based on pregnancy, a decision from the federal tribunal considered whether excluding pregnancy and parental leaves from the calculation of continuous service was discriminatory [Lavoie v. Canada (Treasury Board)].[62] The decision confirms that employer policies and practices must not disadvantage employees who take pregnancy and parental leaves. It is also important because it recognizes that even though men can take parental leaves, if it is mostly women who do so policies that impact those on parental leave will adversely impact women.

Industry Canada had a policy that provided that after three years of continuous service, a term appointment would be converted into an indeterminate one. However, the policy excluded unpaid leaves of greater than 60 days (including maternity and parental leaves) when calculating continuous service. Therefore, but for the application of the policy which excluded her maternity leave time, the complainant would have been appointed an indeterminate employee. She alleged the policy was discriminatory.

The Canadian Human Rights Tribunal (CHRT) found that the policy was discriminatory. The CHRT said that in matters of discrimination, a distinction must be made between the rights resulting from compensatory benefits (i.e. employee benefits that are conditional on performance of work for the employer) and non-compensatory benefits (i.e. those relating to the employee's status). Accrual of seniority, the right to employment, the right to keep one's employment, and the right to tenure are described as non-compensatory benefits and relate to the status of the employee. Underlying this second category is the notion that performance of the work is not required to acquire or maintain the right.

The CHRT found that the entitlement to convert to an indeterminate employee was a non-compensatory benefit and therefore was not conditional on performance of work. The proper comparator group was employees not taking a leave of absence of greater than 60 days (not employees taking other types of unpaid leaves of absence). The CHRT distinguished other pregnancy cases where a benefit was compensatory in nature.

The CHRT concluded that excluding maternity leave absences from conversion entitlement discriminated on the basis of sex. The CHRT also considered the argument that excluding parental leave did not discriminate against women as men were entitled to parental leave as well. The CHRT accepted statistical evidence that in practice persons taking parental leave greater than 60 days were 77% women. The respondent was unable to establish a BFR defence.

In another case with a systemic component, the CHRT found that a respondent’s practice of deliberately offering one year contracts, in part to get around its obligations to employees who might become pregnant, was discriminatory and ordered it to cease its discriminatory practices against pregnant employees.[63]

Reprisal

Section 8 of the Code protects individuals who pursue their rights under the Code[64] from retaliation or reprisal for doing so. Unlike discrimination and harassment, establishing reprisal does require proving that there was an intent to retaliate against the applicant for attempting to claim or enforce rights under the Code. In one decision, the HRTO found that a woman experienced reprisal as a result of an earlier human rights complaint alleging discrimination based on pregnancy.[65] The original human rights complaint related to an allegation that the woman had been required to take an unpaid leave because she was pregnant. The discrimination claim was settled. Three weeks after the settlement was reached, the respondent terminated the applicant’s employment. The respondent had sent a letter to Human Resources Development Canada saying that the applicant was dismissed due to “recent litigation” and that “the employment relationship and employer/employee trust were affected to the point that it was impossible to continue her employment.” The HRTO found that this was a reference to her human rights claim and that any change in the dynamics of the relationship between the applicant and employer due to the human rights case did not give the employer the right to terminate her employment. The applicant had lawfully pursued her rights under the Code and should not have been punished for doing so. The HRTO awarded $15,000 for injury to dignity, feelings and self-respect as a result of the reprisal, a further $42,000 in lost wages and public interest remedies including policy development and training.[66]

In another case, Cavaliere v. Schaeffler, in addition to alleging discrimination based on pregnancy, the applicant claimed that she experienced reprisal for making a human rights claim as the respondent refused to offer her a short-term contract after she filed her human rights application. The HRTO found that the applicant had been laid off, along with many other employees, due to an economic downturn in the industry and not because she took a pregnancy and parental leave. The HRTO went on consider her reprisal claim. It rejected the respondent’s argument that the HRTO did not have the jurisdiction to consider reprisal allegations in relation to incidents that occurred after the termination of her employment, stating:[67] “There is nothing in the wording of section 8 that restricts its application to the time frame of an employment relationship, and this Tribunal has consistently held that acts of retaliation that occur after the end of a contractual or an employment relationship can constitute reprisal….” However, the HRTO did not find reprisal on the facts of the case.

Pregnancy and family status

As noted in the Policy there is an obvious connection between human rights protections related to pregnancy, breastfeeding and family status (the status of being in a parent and child relationship). The case law in the last several years has also confirmed that discrimination based on these grounds is often interrelated. Women may be subjected to adverse treatment because they become pregnant and have children or because of responsibilities related to caring for their children. As one recent decision illustrates, the impact of their partner’s pregnancy, or of childcare obligations after a baby is born, can be felt by men.[68]

Employers cannot ask questions during an interview about a woman’s children or her plans to become pregnant. In one decision, the Tribunal found that a woman who was asked questions about her children during an interview experienced discrimination based on family status even though the company still hired her.[69] The company said that the issue of children came up during the informal interview process because everyone in the company has families and noted that it was not influenced by her answer to the question as she was hired. The Tribunal nevertheless found that this was discrimination based on family status, contrary to the Code. It noted that s. 23(2) of the Code, which prohibits interview questions that are directly or indirectly related to a prohibited ground of discrimination, is violated even if the employer does not act on the information obtained by the improper question, for example by denying the person the job.[70] However, the HRTO did not order any monetary compensation since the question had no adverse impact on the applicant. The company’s Office Manager was ordered to review information dealing with interviewing and making hiring decisions published on the Ontario Human Rights Commission's website (www.ohrc.on.ca)[71].

In one case[72], the HRTO found that a woman who asked to transition back to work on a part-time basis after her pregnancy and parental leave did not experience discrimination on the basis of pregnancy or family status when she effectively had to accept a different position at a lower rate of pay[73] and was then denied the opportunity to return to her full-time position. The woman argued that she was prevented from returning to the job she held prior to her maternity leave and was constructively dismissed. However, the HRTO found that by asking to work part-time, the woman had negotiated a new job and was not entitled to return to her full-time position. There had been no promise that she could return full-time if the part-time arrangement did not work out. The decision largely turns on factual findings; however, it is concerning that it appears to suggest that if a woman asks to transition back to work on a part-time basis after a pregnancy leave, she has in effect bargained away her right to her pre-pregnancy leave job. Unfortunately, the decision does not consider the link between the request to work part-time and family status and whether the employer had an obligation to consider her request as an accommodation.

In contrast to this decision, the British Columbia Human Rights Tribunal did find that an employer’s negative treatment of a woman because he was frustrated that she went on a maternity leave was discrimination based on pregnancy and family status.[74] Among other things, the employer unilaterally withdrew the flexible work arrangements that the employee had negotiated. The employer’s unilateral withdrawal of the promised permanent condition of flexibility in the employee’s work environment (premised on a need to meet her childcare obligations), was prima facie discrimination based on family status.

Adverse consequences related to pregnancy and family status can also be felt by men. This was the case in McDonald v. Mid-Huron Roofing,[75] where the HRTO found a man experienced discrimination based on family status when he was fired for absences because of his wife’s serious pregnancy-related complications and due to the fact that he had to take his premature baby to a medical appointment. The HRTO stated:

The circumstances of the applicant’s family, which were known to the respondent at the time the decision was made to fire him, can be summarized as follows. The mother of his son had experienced a difficult pregnancy, was very ill, and was in severe pain. She had been required to stop work earlier than expected, and the couple had few resources. Their 12-day-old premature son had a doctor’s appointment, and at the same time his mother required treatment for severe pain from gallstones. The couple had no extended family immediately available to meet an emergency situation.

Given his family status, the refusal to allow the applicant the time away from work needed for his son’s medical appointment had an adverse effect on the applicant. That adverse effect can only be justified under the Code if the respondent can establish that the requirement was “reasonable and bona fide.”

The HRTO went on to find that the respondent could not establish that accommodating the employee would have caused undue hardship. The employer was aware of the applicant’s family situation. In the circumstances, the procedural duty to accommodate required the employer to ask what the employee needed and to give serious consideration to whether his family status needs could be accommodated.

With regard to whether the absences were an undue hardship, the HRTO accepted that the absences caused some inconvenience and frustration, as well as some expense for the employer. The employer also argued they had a negative impact on employee morale. However, the HRTO noted that under the Ontario Code it is not clear that employee morale can be considered as part of the undue hardship analysis.[76] Even if morale can be considered in assessing undue hardship, the employer would have to show that it took steps to deal with rumours that an accommodation is being requested unreasonably. The term “undue” indicates that some hardship is acceptable. In this case, the employer was not able to show it could not have accommodated the absences without undue hardship.

Remedies

Section 45.2(1) of the Code deals with the remedies that the HRTO may order.[77] The goal of remedies is to compensate the individual who has experienced discrimination and not to punish the respondent. The HRTO has said that damages for Code violations, must be fair to both the applicant and respondent(s), given the violations of the Code found.[78] At the same time, damages under the Code must not be so low as to trivialize the social importance of the Code by effectively creating a “license fee to discriminate.”[79]

There are generally three types of remedies awarded to women found to have experienced pregnancy-related discrimination:

• monetary damages to compensate for the inherent harm that results from experiencing discrimination, in particular for injury to dignity, feelings and self-respect. These are sometimes also called “general damages.”
• monetary damages to compensate for actual losses that flow from the discrimination such as lost wages if the woman’s employment was terminated in breach of the Code, or lost benefits (e.g. where a woman has been able to show that the discrimination prevented her from acquiring enough hours to qualify for Employment Insurance benefits).
• public interest or future compliance remedies. These are ordered to help ensure that future similar violations of the Code will not occur. They typically require a respondent to develop a human rights policy and engage in training with respect to obligations under the Code.

There are many factors that go into a determination of appropriate remedies if discrimination related to pregnancy is found. It is very important that a claimant come prepared to provide detailed evidence with respect to the impact of discrimination and to prove all of her damages. Some adjudicators have refused to provide remedies, or have ordered low damages, because a woman has not had sufficient evidence to establish her losses and the impact of the discrimination on her.[80]

a. Monetary damages injury to dignity, feelings and self-respect

In Arunachalam, a leading HRTO decision dealing with calculating damages for injury to dignity, feelings and self-respect, the HRTO stated:[81]

Monetary compensation for injury to dignity, feelings and self-respect recognizes that the injury to a person who experiences discrimination is more than just quantifiable financial losses, such as lost wages. The harm, for example, of being discriminatorily denied a service, an employment opportunity, or housing is not just the lost service, job or home but the harm of being treated with less dignity, as less worthy of concern and respect because of personal characteristics, and the consequent psychological effects.

The decision also noted that the HRTO has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination.

With regard to the objective seriousness of the discrimination, this is determined based on what actually occurred. A review of the HRTO decisions to date suggests that the following considerations factor into an assessment of the objective seriousness of the Code breach:

• whether the discrimination had an actual impact, for example where an employer has asked a discriminatory question during a job interview but still hired the applicant, little or no damages have been awarded;[82]
• whether there was a reduction in income[83] and/or loss of employment, housing etc. as a result of discrimination. Financial consequences and loss of employment (or housing) usually have a greater impact than a comment made on one occasion or a situation that does not result in financial impact, loss of the job etc.;
• if the discrimination resulted in loss of employment, whether the employee had been with the employer for a long time versus whether she was recently hired. Loss of long-term employment will typically be more harmful than the loss of a new job;
• the timing of the discrimination, for example termination the day after returning to work after suffering a miscarriage;[84]
• whether the discrimination or harassment persisted over a period of time;[85]
• the use of objectively hurtful, degrading or offensive language related to the pregnancy makes the respondent’s conduct objectively more serious;[86]
• whether the employer persisted in the discriminatory conduct despite the applicant drawing the discriminatory conduct and her rights to the employer’s attention;[87]
• whether the applicant’s own actions contributed to the discrimination; for example in Gonneau v. Denninger, the HRTO suggested that the applicant’s failure to keep the respondent informed of her situation contributed to the discrimination she experienced and appears to have adjusted the amount awarded for injury to dignity accordingly.[88]

The second factor looks at the impact on the particular individual. In this regard, it is very important for claimants to be prepared to explain, and even prove with evidence (such as medical records if alleging that the discrimination led to anxiety, depression or other mental or physical symptoms), their particularl vulnerability and the actual impact of the discrimination on them.

Some of the factors that have been considered when assessing the particular effect on the applicant include:

• The age of the woman. For example, in Maciel, the Tribunal noted the applicant’s vulnerability as a young person, just out of school, starting her first full-time job;[89]
• The circumstances around the pregnancy, e.g. whether it was unplanned, whether the woman was going to be a single parent;[90]
• Where the applicant was in her pregnancy when the discrimination occurred (in some cases, discrimination later in the pregnancy has been seen to have a more serious impact);[91]
• Whether the applicant was experiencing a difficult pregnancy or complications that made her more physically and emotionally vulnerable;[92]
• Whether the woman experienced additional upset, humiliation and anxiety;[93]
• Whether the woman also experienced financial consequences as a result of the discrimination and the seriousness of those financial consequences;[94]
• The duration of economic vulnerability and uncertainty caused by the discrimination including whether the applicant was able to mitigate the effects of the discrimination (for example, by finding another job quickly, by still qualifying for EI benefits).[95]

In pregnancy cases, the range of awards by the HRTO for injury to dignity, feelings and self-respect has been from $2,000[96] at the low end,[97] usually in cases where a woman has not been found to have lost her employment due to the discrimination, to $20,000 at the high end.[98] Most awards where a woman has lost her employment as a result of pregnancy-related discrimination fall in the $10,000 to $15,000 range.

b. Monetary damages for actual losses

The HRTO has awarded a variety of damages for actual financial losses in pregnancy employment claims. Most often, the HRTO awards lost wages, i.e. the wages the woman would have earned but for the discrimination. If the woman was able to find another job at a similar rate of pay within a reasonable period of time[99], the lost wages will typically run until the woman began her new job. If the woman did not find another job but still qualified for EI benefits, the financial losses will likely be based on what she would have earned had she continued to work until she would have started her leave. The HRTO may even order lost wages for the period after the woman’s EI benefits run out until she finds another job (although this is more likely if the woman loses her job close to when she would have started her maternity leave).[100]

To date, the HRTO has generally found that an employer is not responsible for intervening events that affected the woman’s ability to earn a living.[101] For example, in Korkola, the HRTO did not accept that the respondent employer was responsible for the fact that the applicant did not have jobs after her maternity leave. After the discriminatory termination but before she gave birth, the applicant found another job with a different employer. However, because the new employer experienced an economic downturn, she did not have a job to return to after her maternity leaves. The HRTO found that the respondent’s responsibility for lost wages ended when the woman found a new job. A claim for lost wages because the new employer could not take the woman back after her maternity leaves was too remote.

In some decisions, where the HRTO has found that both a woman’s pregnancy and performance issues have contributed to the employer’s decision to terminate her employment, the HRTO has considered the performance issues when deciding on remedy. Therefore, in a few cases, the HRTO has found that even if the woman had not experienced discrimination based on pregnancy, the performance problems would have led to her eventual termination and has reduced the amount of lost wages accordingly.[102] Similarly, in Gonneau where the woman’s failure to keep the employer informed about whether and when she intended to return to work after being off due to pregnancy-related complications contributed to the fact that the employer terminated her employment, the HRTO stated:[103]

I accept that the applicant experienced financial difficulties as a result of the end of her employment but I find that the applicant is not entitled to compensation for these financial consequences because the financial consequences would not likely have resulted but for the failure of the applicant to keep the respondent better informed.

In some cases, the HRTO has prepared to hold an employer who discriminates responsible for the fact that the discrimination results in the loss of EI benefits saying[104]:

It is reasonably foreseeable that a pregnant woman will be unable to find alternate employment during her pregnancy to make up for any shortfall in eligibility requirements to qualify for full maternity leave and parental benefits.

Therefore, in addition to lost wages, the HRTO has ordered compensation for the loss of, or shortfall in, EI benefits the applicant would have received had she not experienced the discrimination. For example, in Maciel the Tribunal found that as a result of the discriminatory termination, the applicant could not acquire enough hours to meet the threshold required by EI and ordered the employer to compensate her for the lost benefits in the amount of $12,100. In one decision, where the employer’s failure to accommodate forced a woman to reduce her hours from full-time to part-time, the HRTO ordered the former employer to issue a new Record of Employment to reflect the earnings the woman would have had if she had been working full-time (to allow the applicant to apply for reassessment of her EI benefits).[105]

There is a general duty for applicants to mitigate (take steps to lessen) the damages they experience as a result of discrimination. In employment cases, this usually means searching for new employment. In some cases, the HRTO appears to have accepted that a woman who is nearing her due date is not likely to find a new job.[106]

However, in one decision the HRTO found that a woman whose employment was terminated early in her pregnancy failed to fulfill her duty to mitigate when she stopped her job search efforts approximately 4-5 months before giving birth (because she did not think she would find a job while visibly pregnant). Because of this failure to mitigate, the HRTO ordered lost wages until the applicant stopped looking for work and did not order a remedy for the loss of her EI benefits.[107]

c. Public interest/future compliance remedies

Typical public interest remedies ordered by the HRTO in pregnancy cases include ordering:

• the respondent to develop a human rights policy that describes its obligations under the Code, especially with respect to accommodating pregnant employees;
• the respondent to hire a human rights consultant to provide a mandatory human rights training program about human rights in general, with a particular focus on pregnancy-related rights;
• a personal respondent, owner, operator and all employees who perform management or supervisory functions to take the Commission’s online Human Rights 101 training;
• an Office Manager who had asked a discriminatory question during an interview to review Commission documents dealing with hiring and interviewing;[108]
• the posting of Code cards in prominent locations where they will be seen by employees and customers.[109]

In one decision, the HRTO ordered the respondent to pay $2,500 for retraining and outplacement counseling for the applicant.[110]

In many decisions, the HRTO has required the respondent to confirm to the applicant that the public interest remedies have been fulfilled.[111]

The Employment Standards Act[112]

Under the Employment Standards Act, 2000, S.O. 2000 c. 41 (the ESA), pregnant women have the right to take up to 17 weeks of unpaid pregnancy leave. New parents have the right to take parental leave: unpaid time off work when a baby or child is born or first comes into their care. Birth mothers who took pregnancy leave are entitled to up to 35 weeks of parental leave. Birth mothers who do not take pregnancy leave and all other new parents are entitled to up to 37 weeks of parental leave.

Employees on leave have the right to continue participation in certain benefit plans and to continue to earn credit for length of employment, length of service, and seniority. In most cases, employees must be given their old job back at the end of their pregnancy or parental leave, or a comparable job if the old job no longer exists. The employer cannot refuse to give the employee her job back because it prefers the person who was hired to replace her during the leave.[113]

An employer cannot penalize an employee in any way because the employee is taking or planning to take a pregnancy or parental leave.

The relevant sections of the ESA state:

53. (1) Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

…

(2) Subsection (1) does not apply if the employment of the employee is ended solely for reasons unrelated to the leave.

(3) The employer shall pay a reinstated employee at a rate that is equal to the greater of,

(a) the rate that the employee most recently earned with the employer; and

(b) the rate that the employee would be earning had he or she worked throughout the leave.

74. (1) No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,

(a)  because the employee, …

(iv) exercises or attempts to exercise a right under this Act,

(viii) is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV; or…

(2) Subject to subsection 122(4), in any proceeding under this Act, the burden of proof that an employer did not contravene a provision set out in this section lies upon the employer.[114]

Claims that an employer has breached the provisions of the ESA can be filed with the Ministry of Labour. ESA claims are first considered by an Employment Standards Officer (an ESO) who conducts an investigation and decides whether or not the employer complied with the ESA. The employee or the employer can ask the Ontario Labour Relations Board (the OLRB) to review the ESO’s decision. The OLRB will hold a hearing and decide whether to confirm the decision of the ESO or substitute its decision for that of the ESO. Where a breach of the ESA is found, damages for lost wages, loss of reasonable expectation of ongoing employment, damages for mental distress, and reinstatement of the employee can be ordered.

A review of the Employment Standard Officer and Ontario Labour Relations Board decisions considering the protections under the ESA is beyond the scope of this case law review. However, it is important to be aware of the overlap between ESA protections and the Code as where an employee chooses to file an ESA claim, it has implications for any human rights application under the Code (see discussion of s. 45.1 of the Code below).

Other proceedings (s. 45.1)

Section 45.1 of the Code states:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

A number of HRTO decisions have considered whether s. 45.1 should be applied to dismiss an application where the applicant has also filed a grievance under a collective agreement or made a complaint under the ESA. The law in relation to s. 45.1 continues to evolve. However, based on the decisions to date, it appears that where a grievance has been determined by a labour arbitrator or a decision has been made by an ESO in relation to an ESA complaint, the HRTO may apply s. 45.1 to decline to hear a human rights application raising the same issues.

The HRTO has clearly stated that a complaint determined by an ESO constitutes a proceeding within the meaning of s. 45.1. See, for example, Little v. TeleTech Canada[115] and Poirier v. MacLean Engineering & Marketing.[116]

However, the case law has been more mixed (depending on the nature of the human rights claim and the ESA complaint) in terms of the second part of s. 45.1: whether the other proceeding appropriately dealt with the human rights matter. In a few decisions prior to the Supreme Court of Canada’s decisions in Figliola and Penner,[117] the HRTO permitted an application to continue despite an ESO decision. In Bickell[118] the HRTO adjudicator declined to exercise her discretion to dismiss the application under s. 45.1 despite the fact that an ESO had already found that the employer had breached the ESA. The adjudicator noted that the respondent was not seeking to rely on s. 45.1 and that the ESO had given no consideration to the Code and to the applicant’s claim that her shifts and hours were reduced before her employment was terminated. However, in Bickell the ESO’s award was taken into account in ordering remedies. In Vonella v. Blake Jarrett,[119] the HRTO found that allegations of differential treatment based on pregnancy prior to the applicant’s maternity leave were not covered by the ESO decision. The ESO had only determined whether the applicant had been reprised against by her employer for seeking to exercise her statutory rights to take a pregnancy/parental leave under the ESA.

More recently, in several decisions since Figliolia (but before the Supreme Court of Canada’s decision in Penner), the HRTO has more clearly stated that matters considered by an ESO in a claim under the ESA cannot be re-litigated at the HRTO.[120] However, where the application raises other issues that cannot be raised in an ESA complaint, for example whether the employer breached its duty to accommodate a pregnant woman, the application will not be dismissed under s. 45.1. As one adjudicator noted:[121]

I do agree that the application of section 45.1 will be highly case specific and will depend entirely on the issues raised in the other proceeding and of course, the nature of the other adjudication; i.e., is it a proceeding within the meaning of the section. I agree that not every claim under the pregnancy and parental leave provisions of the ESA will necessarily preclude an applicant from proceeding with an Application here alleging discrimination on the basis of pregnancy. The most obvious such circumstance would be where the substance of the Application was an allegation of a failure to accommodate pregnancy related needs. As I have concluded in this case to the extent that the Application includes an allegation of a failure to accommodate the applicant the ESA/OLRB proceeding did not deal with that issue and in many cases would not be able to. I do find however that an allegation that a dismissal from employment was made, in whole or in part, because an applicant sought to take or continue a leave is an issue that can arise under both the Code and the ESA and can be dealt with in an ESA proceeding.

See also Thomas v. Revera Retirement Living LP[122] for a decision where the HRTO dismissed a claim of discrimination based on pregnancy under s. 45.1 because a grievance arbitrator had considered whether the applicant experienced discrimination based on sex when her employment was terminated when she was 8 months pregnant, just after having announced her intention to take a maternity leave.

The decisions applying s. 45.1 to ESA proceedings and grievance arbitrations involving claims of discrimination based on pregnancy were released before the Supreme Court of Canada’s decision in Penner and subsequent HRTO cases that have clarified the application of both Figliola and Penner in the context of s. 45.1.[123] In decisions since Penner, the HRTO Tribunal has stated that the factors to be considered when determining whether the substance of a human rights application has been “appropriately dealt with” in another proceeding require consideration of: the reasonable expectations of the parties (including whether the other statutory scheme contemplates parallel proceedings or whether a finding in the other proceeding prevents a claimant from seeking a remedy at the Tribunal); the availability of any remedy or “financial stake” for the complainant in the other proceeding; and the broader policy implications of applying s. 45.1 in the relevant context.

Therefore, employees considering filing a grievance or a claim alleging that the employer has breached the ESA should be aware that this may have an impact on any application made to the HRTO. At minimum, the HRTO will defer the application until the ESA claim has been determined. A decision by an ESO, depending on the circumstances, may result in dismissal of all or part of the human rights application. In particular, a decision by an ESO on whether or not the employee was dismissed (or otherwise penalized) because she planned to take or took a pregnancy leave likely cannot be re-litigated at the HRTO. However, the HRTO may allow a claim that an employer failed in its duty to accommodate pregnant woman to proceed.

Conclusion

This case law review has analyzed significant recent human rights decisions dealing with pregnancy and breastfeeding discrimination. It does not provide legal advice. However, read along with the Commission’s Policy, the aim of this document is to provide assistance to those who are trying to understand their rights and obligations under the Code and to provide practical guidance on how human rights decision-makers are dealing with the cases that come before them.