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Human Rights at Work 2008 - Third Edition /

IV. Human rights issues at all stages in employment

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a) Human rights training and education for employees

As is noted in Section IV-1a(v) – “Educate and train employees on policies and procedures,” it is expected that all employees will receive human rights training so that they can know and understand their obligations in the workplace. It is very important that this be done for employees providing services to the public and senior staff responsible for hiring, managing performance, accommodations, discipline and handling human rights concerns. Failing to train these key staff may lead to human rights claims.

b) Protect Code-related personal information

An employer or service provider who legitimately requires and collects personal information that either directly or indirectly identifies a person by one of the prohibited grounds of discrimination listed in the Code must maintain the maximum degree of privacy and confidentiality of the information. This applies in all situations, including employment records and files, insurance company records and medical information. The information might be needed to enable an employee or individual to claim or register for benefits, pensions or for other purposes. To protect the person’s privacy, all information should remain exclusively with designated staff (such as the human resources person) in a secure filing system.

For example, documentation that requires employees to identify next-of-kin, or a beneficiary for insurance purposes or benefits claims forms, may contain information that identifies employees by sexual orientation. If this information is not treated confidentially, employees who are gay, lesbian or bisexual, or who are in a same-sex relationship, may feel vulnerable to subtle or overt discrimination or harassment.

As well, employees making accommodation requests may legitimately be concerned that details about, for example, their creed, disability or pregnancy will be revealed.

Example: An employee with HIV has provided documentation to show her need for a flexible schedule and rest periods to manage periods of fatigue, as well as time for health care appointments. However, the employee does not have to disclose that she is HIV-positive. The employer is entitled to know that the employee has a disability and that she needs certain accommodations to stay productive at work. Maintaining confidentiality for persons with mental illness may be especially important, because of the strong social stigmas and stereotyping that still persist about such disabilities.

Documentation supporting the need for particular accommodation (for example, flexible hours, or a technical aid) should be provided only to people who need to know the information. In some cases, it may be preferable for information to be provided to the company's health department or human resources staff rather than directly to the supervisor, to further protect privacy. Keep medical documents separate from the person’s corporate file.

An employer or service provider who does not properly safeguard the personal information about an employee may infringe the Code. A complaint can be made where this results in a person being subjected to discrimination and/or harassment.

Practice tips:

  • Information needed for benefit plans: Information relating to an employee’s religion, disabilities or sexual orientation may be needed in some cases. For example, information related to Code grounds may be needed for enrolment in employer pension and benefit plans. Employers should only collect information that they really need. While benefit information about an employee would likely include age, sex, marital status and family status, an employer would not likely need to collect information about an employee's race, religion, ethnic origin or sexual orientation. Disclosing such information for any purpose not related to the benefits would be contrary to the Code,
  • Information needed for accommodation: Sub. 17(2) of the Code requires employers to accommodate an employee’s needs related to prohibited grounds of discrimination. To accommodate employee needs related to religious beliefs, disabilities or other Code grounds, an employer would need to collect and use that data. Disclosing such information for any purpose not related to such accommodation would be contrary to the Code.
  • Disclosing information to third parties: Information may be disclosed to the government agencies that require the information to be collected. Examples of this would be Revenue Canada, or the Employment Standards Branch of the Ministry of Labour. These agencies administer legislation that requires employers to collect and retain various types of information, permits the agencies to request information and requires employers to provide such information on an inspection or audit.
  • Separating employee records: Only disclose information that is required. For example, the Canada Customs and Revenue Agency would not need information about an employee's race, disabilities or sexual orientation. In other words, do not just provide a general employee file that might include information about the grounds set out in the Code. Instead, store data in a form that allows you to retrieve and disclose only the parts that are needed.

c) Codes of conduct (including dress codes)

Where an employer chooses to institute a policy requiring new and existing employees to follow a code of conduct, including a dress code, or to sign an agreement not to perform certain kinds of behaviours, steps must be taken to make sure that the expectations do not contravene the Code.

i) Codes of conduct:

A code of conduct should not rely on stereotypes connected to Code grounds. Nor should it apply relatively more often to any group protected by the Code than it would to anyone else. Accommodation that is required by an employee should also be provided to the point of undue hardship.

Example: An employer has a code of conduct prohibiting swearing in the workplace. As a result of his mental disability, an employee cannot comply with the rules and requests accommodation when he is threatened with discipline. Despite this, the employer suspends him. In the context of the employee’s disability-related needs, the discipline would be viewed as discriminatory.

Morality statements: Human rights complaints may arise from an employer’s policy requiring new and existing employees to comply with a “morality statement.” In these statements, employees are usually asked to agree not to engage in certain listed behaviours. This kind of approach may contravene the Code if the listed behaviours relate to Code grounds such as sexual orientation or marital status and are not bona fide occupational requirements.

Example: An organization has a policy stating that employees must not engage in a same-sex relationship and that disciplinary sanctions, up to and including termination, apply for breaking this policy. Putting such a policy in place would amount to discrimination on the basis of sexual orientation, subject to the availability of any defence under the Code.

While an employer may seek to identify itself as a religious organization to qualify for a defence under the Code, this complex factual determination can only be made by a tribunal. As was noted earlier, defences in the Code are interpreted narrowly, and an employer must be able to prove that such an exemption applies. There is a real risk that a tribunal may find that the exemption does not apply, and that the requirement may be discriminatory.

ii) Dress codes:

Employers can have a dress code or rules about dress that meet the business needs of the organization, as long as they comply with the Code. Rules about dress may include having to wear a uniform or having to wear protective gear. Design such rules to be inclusive of all employees, including men and women, people with disabilities, and anyone who needs accommodation for religious reasons. Make sure that any requirements are made in good faith and are genuinely required to do the job.

Example: All employees are expected to wear blue clothing with the company logo when on duty. The options are shorts or pants, shirts with either short or long sleeves and skirts at either knee or ankle length. The dress code states that religious head coverings of any type may be worn with the uniform. Women are not required to wear skirts and, in fact, most choose to wear pants. Female employees who wish to dress modestly for religious reasons appreciate the option of being able to wear ankle-length skirts without needing to make an accommodation request.

While it is acceptable for men and women to have different uniforms, employers must make sure that any uniform policy does not undermine the dignity and right to full participation in the workplace of employees of either sex. An employer should be prepared to prove that any sex-linked differences in the dress code are bona fide occupational requirements. Do not subject female employees to more difficult requirements than male employees, and do not expect them to dress provocatively to attract clients. It is discrimination based on sex to require female employees to wear high heels, short skirts and tight tops.

Where employees are providing services to the public, a requirement that employees wear name badges can be a part of preventing or tackling racism and racial discrimination. For example, police officers or security guards who may be involved in racial profiling during their shifts can be more easily identified if they wear name badges.

Employers will need to provide accommodation to the point of undue hardship for dress code issues that cannot be addressed through inclusive design. See also Section IV-8f(ii) – “Creed – accommodating employees’ religious needs” and Section IV-8e(vi) – “Dress codes and accommodation requests.”

d) Hours of work and breaks

Sometimes decisions about schedules, hours of work and break times lead to complaints of discrimination by employees protected under the Code. In some cases, these can be traced back to a lack of inclusive design and in other cases, a failure to accommodate.

For example, an inclusively designed shift policy would take into account that some employees will not, as a result of a Code ground, be able to work a night shift or a rotating shift:

  • experts estimate that 4 to 5% of the general population have bipolar disorder. This disability is often successfully managed through a combination of regular sleep and medication with follow-up
  • similarly, families with small children may be unable to find a caregiver to provide care overnight, given that most daycare centres only run during regular office hours.

There are many situations where employers would be expected to accommodate based on Code needs relating to hours of work and break times. For example, an employer might also be expected to allow an employee to change from a night shift or a rotating shift to a day shift as one of a range of accommodations. Failing to accommodate in the following situations amounts to discrimination:

  • an employee is scheduled for Friday evening shifts despite his religious observances and related accommodation request to work an alternate shift (creed)
  • an employee is disciplined for trading shifts with a colleague to meet a caregiving need – there is a blanket rule against this kind of informal shift change (family status)
  • an employee with a disability is not allowed to adjust her shifts to coincide with the timing of Wheel-Trans transportation (7:30 a.m. drop-off and 4 p.m. pick-up). This means that she cannot work full-time hours even though she could easily do her work in these hours (disability)
  • an employee who is pumping breast-milk for her infant is told that she is not allowed to extend her break-times without being docked pay for every minute she is late (sex)
  • a Muslim employee requests flex time to be able to pray at specific times throughout the day. The employer says no on the basis that if he grants this accommodation request, other employees will ask for flex time too (creed)

An employee should not be forced to accept part-time hours as an accommodation without having assessed other alternatives. Where an employee’s hours are significantly reduced after he or she has made an accommodation request, this may be viewed as a reprisal or a failure to meet the duty to accommodate.

Flexible scheduling is a part of inclusive design that can address needs relating to multiple Code grounds. This can help employees who are pregnant, older or who have disabilities, when they have medical appointments. These employees may be able to use flexible scheduling so they are at work during their most productive periods in the day, if their symptoms or needs vary according to the time of day. People who are responsible for providing care or support to their children, a dependent with a disability, or parents, who may have age or disability-related needs, will also benefit from flexible work arrangements. Flexible scheduling also provides a way for employees with creed-based needs to balance their religious beliefs and work life.

Flexible scheduling may include:

  • flexibility on break times
  • alternative start and end times on the days when the person cannot work for the entire period
  • part-time hours
  • use of lunch times in exchange for early departure or staggered work hours
  • where the person has already used up paid holy days, vacation days or other days he or she is entitled to, the employer should also consider allowing the employee to make up time lost, use floating days off or use other flexible work arrangements to compensate. See also Section IV-8(f)ii(a) – “Requests for paid days off for religious observance.”

When considering accommodation requests, keep in mind that the Code has primacy over legislated requirements, unless the law specifically says that it is to apply regardless of the Code.

Example: An employee asks for time off for religious observance and offers to make up his time over his lunch hour. The employer is aware of the Employment Standards Act (ESA) rules about eating periods and hours of work, but understands that he has to first meet the duty to accommodate under the Code.

e) Assigning tasks

Assign tasks and duties fairly and consistently, taking into account employees’ accommodation needs. The following types of situations may lead to discrimination claims:

  • A police officer is re-assigned to office duties soon after she notifies her supervisor of her pregnancy, although she has not asked for accommodation and is able to continue with her usual tasks.
  • Employees with disabilities are assigned to light duties in the only area of an organization where such duties are assigned. There is tremendous stigma associated with this unit – all staff refer to it by a nasty wordplay on the unit’s real name.
  • A racialized employee states that he is assigned the dreaded night shift more often than others and often asked to clean the washrooms, although this is not normally part of the job.
  • An employee is on part-time work as a medically documented accommodation. Although her doctor says she is only allowed to work 20 hours per week, she is routinely assigned tasks that would fill a full-time work week. If she does not finish the work, she is disciplined.
  • An employee has medical restrictions and cannot lift heavy objects. These tasks are re-assigned to his co-workers who openly complain and make fun of him. The employer does not stop them from doing this.

f) Pay and bonuses

Employee compensation may take on different forms, such as pay and bonuses, contributions to benefit premiums or accruing vacation credits. Where employers, as a matter of course, pay a certain form of compensation to other employees who are away from work, employees absent due to disability are also entitled to such compensation.[42] Pay and bonuses should be given without regard to Code grounds such as sex or race. It is discriminatory to pay women, racialized persons or other people protected by Code grounds less than other employees, when doing equivalent work.

Example: Although most of the workers in a unit are performing the same tasks, employees who are racialized or newcomers whose first language is not English are paid less than White employees. The difference in salary is even greater where the employee is racialized and a woman or a person with a disability. Unless the employer can prove that the differences in salary are based on legitimate factors such as date of hire or the tasks performed, this would be discriminatory.

Linking how bonuses, salary pay scales or eligibility for salary increases are determined to attendance may be a problem since employees with disabilities, caregiving responsibilities or other Code-related issues may be disproportionately affected by such steps. In effect, such an approach could create salary inequities for persons with disabilities or other Code needs compared to employees not similarly identified by Code grounds.

Example: An employer has a policy that states that any employee who is absent more than four times in four months is not entitled to a raise or bonus. An employee with a chronic illness is absent more often than this. Although her absences are linked to documented medical needs, she is denied her yearly raise. She requests that her absence rate be calculated based on absences not linked to her medical needs or other Code grounds. This request is denied. This policy is discriminatory as it is not inclusively designed and does not take accommodation requirements into account. The employer has not met its duty to accommodate and may be found to have discriminated against the employee.

In some cases, discrimination may be identified in differences in pay between occupational groupings (for example, pay equity cases compare pay for jobs usually held by women against jobs requiring similar skills that are usually held by men) or between individuals in the same position.

Example: Although wages are calculated based on seniority, a male with low seniority is paid higher than would be warranted based on his seniority. It turns out that he has been allowed to claim overtime unofficially while women in the same position must get approval based on an overtime policy. This amounts to sex discrimination.

g) Vacation

Code-related time off should not affect decisions about vacation entitlement. For example, if an employer considers or is influenced by an employee’s disability in making decisions relating to vacation this may be discriminatory.

Example: An employee missed two months of work due to multiple sclerosis, returned to work for three months and then was off work for two months due to a different illness. Her employment was terminated after she took vacation. She was fired because she was viewed as having been absent from work too often in the preceding months. In reaching this conclusion, the employer took into account disability-related absences the employer would be expected to accommodate to the point of undue hardship. Thus, the employer may be seen to have breached the Code.

An employee on a Code-related leave of absence is still entitled to accrue vacation time. The entitlement to vacation pay depends on the terms of the employee’s contract or the collective agreement in place. If vacation pay and time are linked to service, the employee continues to accumulate both during a leave. On the other hand, if pay is based on earnings and a person is receiving benefits under Employment Insurance or the Workplace Safety and Insurance Act only during the leave, it is not discriminatory for the employee to accrue only vacation time but not vacation pay. If the employer normally provides a top-up for employees receiving benefits during a Code-related leave, these employees would be entitled to receive vacation pay based on those earnings.

Example: An employee is off work on maternity and parental leave for one year. She receives the maximum amount of benefits under EI for 50 weeks. The employer provides a top-up to 95% of her salary for the first two weeks (for which she receives no benefits from EI) and for the following 35 weeks. She is entitled to 4% of these earnings as vacation pay and accrues two weeks of vacation time, as she would have had she continued to work full-time.

h) Earning seniority

Seniority directly affects the ability of employees to get, stay in and thrive in the workplace. Seniority is generally considered when promoting, advancing, laying off or recalling an employee, and may be a deciding factor between employees.

Employees who are absent due to disability or pregnancy or other Code grounds, such as family status, should not be treated differently from other employees in earning seniority. For example, in one workplace, all nurses on unpaid leave of absence due to disability did not accumulate seniority. The Ontario Court of Appeal said that the treatment of employees with disabilities should be compared to the treatment of all employees and not simply employees absent for other reasons. Since nurses absent due to disability were being treated differently from other employees, there was a contravention of the Code.[43]

Example: A collective agreement says that any employee on a leave does not accrue seniority while off work. After returning to work from maternity leave, an employee is selected for layoff because she has the least seniority. This scenario raises human rights concerns.

Assignments of seniority that are based on or affected by factors listed in the Code may give rise to claims of discrimination. For example, seniority should not be assigned on the basis of age when more than one employee is hired on the same day.

i) Enrolment in group insurance plans:

Discrimination may take place where a term or condition of employment requires enrolment in a group insurance contract, and an applicant does not qualify for the insurance plan because of a disability (or other Code ground). Under subsection 25(1) of the Code, the term or condition of employment itself would be viewed as a violation of the Code.

Subsection 25(2) of the Code permits group insurance contracts between employers and insurers to allow for different treatment based on sex, as long as they comply with the Employment Standards Act (ESA) and regulations. No provisions permitting different treatment of health-related absences because of pregnancy or during maternity leave have been included in the regulations under the ESA. Under the ESA and its regulations, employers must provide the same benefit entitlements to employees on pregnancy leave or parental leave as they provide to employees on other types of leave.

Discrimination may also arise where an employee is treated differently from other employees in practices relating to insurance plans because of Code grounds.

Example: A female employee is asked to pre-pay for her medical insurance plan before leaving for maternity leave, while her male colleagues on medical leave are not asked to do this. This would be discriminatory.

j) Benefit and pension plans

Issues with pensions and benefits are often challenging, as they are governed by a complex statutory regime as well as actuarial factors.

The protections in the Code extend to benefit and pension plans. Benefit plans that provide benefits to dependants must also respect the protections afforded to persons identified by Code grounds such as family status, sex or disability. Human rights concerns on the grounds of age, disability, sex (pregnancy), marital status and family status arise most often.

Pension plans take effect once persons reach a certain age and are, therefore, of particular concern to older persons. As well, other grounds of discrimination such as disability, marital status and family status may be relevant when considering pension benefits.

Discrimination complaints in pension and benefit schemes must be considered on a case-by-case basis. In general, employers must justify a pension or benefits regime as a bona fide occupational requirement. For example, using length of service as a benchmark for decisions relating to eligibility for workplace benefits or pensions must be a bona fide requirement. Otherwise, it may amount to discrimination against young people, women who are re-entering the workforce or persons with disabilities who may have changed jobs.

Section 25 of the Code contains specific rules for pension and benefit plans. Under section 25(1), it is a violation of the Code to deny employment or make employment conditional on enrolling in an employee benefit, pension or retirement plan or fund or a contract of group insurance between an insurer and an employer that makes a distinction, preference or exclusion on a prohibited ground of discrimination.

However, some distinctions within pension and benefit plans may not be discriminatory within the meaning of human rights law. The following actions do not infringe the Code:

  • an employee retirement, pension plan, fund or contract of group insurance between an insurer and an employer that complies with the ESA and regulations under it [section 25(2)]. The relevant grounds are sex, marital status or family status
  • an employee benefit, pension, retirement or group insurance plan or fund that complies with the ESA and regulations under it [section 25(2.1)]. The relevant ground is age, and this provision applies whether or not a plan or fund is the subject of a contract of insurance between an insurer and an employer
  • a reasonable and bona fide distinction, exclusion or preference made in an employee disability or life insurance plan or benefit because of a pre-existing disability that substantially increases the risk [section 25(3)(a)]
  • a reasonable and bona fide distinction, exclusion or preference based on an employee’s pre-existing disability in an employee-pay-all or a participant-pay-all benefit plan, pension, group insurance contract or in a plan, fund or policy offered by an employer with less than 25 employees (section 25(3)(b)].

O. Reg. 286/01 under the ESA regulates employment-related disability, medical, dental, drug, life insurance and pension plans. See also section ii) “Age” below.

i) Disability:

Subsection 25(4) of the Code states that if an employee is excluded because of a disability from a benefit, pension or retirement plan or fund or a contract of group insurance, an employer must compensate the employee. The employer must give the employee an amount equivalent to the contribution that the employer would otherwise make on behalf of an employee who does not have a disability.

Employee disability plans should not draw distinctions based on the degree or nature of a disability. For example, a disability plan that limits benefits for mental but not physical disability would infringe the Code.[44] As well, excluding employees receiving workers’ compensation benefits from long-term benefits may be found to violate the Code if they are treated differently than other disabled employees.

ii) Age:

If distinctions in benefit entitlements are being made on the basis of age, employers should take care to make sure that the plan meets the test of a bona fide requirement. Sick leave plans that make benefits available based on age have been found to be discriminatory.[45]

Example: A collective agreement provides that eligibility for sick benefits ends at age 55, no matter how long the employee had received such benefits before the cut-off. After collecting sick benefits for two years, an employee is found to be ineligible for further benefits due to this rule. The plan is found to be discriminatory since younger employees could continue to collect benefits for up to 15 years and the employer is unable to show that the cut-off is a bona fide requirement.

Reduced pension benefits for early retirees may not be discriminatory where the actuarial present value of reduced pensions for early retirees is at least equal to the present value of the deferred pension for people who wait until the age of eligibility for full pensions. Also, basing eligibility for pension benefits on reaching a certain age will not likely be considered discriminatory. An example is a Factor 80 retirement scheme.

However, Code protections against discrimination in benefits because of age do not apply over age 65. This is because the Code specifically defers to the ESA. Section 4 of Reg. 286/01 under the ESA permits different treatment because of age based on actuarial factors and if the legislation governing pensions permits. This regulation defines “age” as “any age of 18 years or more and less than 65 years.” This means that pension and benefit plans that differentiate based on age 65 cannot be challenged under the Code. The Commission would encourage employers and unions to nevertheless develop and maintain pension and benefit policies and programs that comply with the spirit of the Code, do not use age-based criteria, and are based on bona fide requirements.

iii) Marital status and family status:

Section 25(2) of the Code permits group insurance and pension contracts between employers and insurers to allow for different treatment based on marital and family status, as long as they comply with the ESA and its regulations.

iv) Sexual orientation:

Denying benefits to same-sex partners or spouses of employees is discriminatory based on sexual orientation. Group insurance and pension contracts between employers and insurers must treat same-sex couples the same as opposite-sex couples. This applies to employee retirement or pension plans or funds, or a contract of group insurance between an insurer and an employer that complies with relevant legislation and regulations.

Example: An employer must provide persons in same-sex relationships with the same spousal benefits provided to people in opposite-sex relationships under their pension benefits plan and insured health benefits plan.

Example: An employer must provide the same survivor benefits to its gay and lesbian employees as it does to its heterosexual employees.

Example: An insurance company’s refusal to pay survivor benefits to a person whose same-sex spouse or partner dies is a violation of the Code.

Also, distinctions should not be drawn based on sexual orientation when assessing requests for parental leave or benefit top-ups made by gay or lesbian parents. For the purposes of the ESA, "parent" includes a birth parent, an adopting parent (whether or not the adoption has been legally finalized) and a person who is in a relationship of some permanence with a parent of a child and who plans on treating the child as his or her own. This means that a gay or lesbian parent may be entitled to 35 to 37 weeks of parental leave, in addition to 17 weeks of pregnancy leave for the birth parent.

Example: A lesbian woman asks for 15 weeks parental leave to care for her child after her spouse, the birth parent, has returned to work. Such requests are normally approved. However, the employer denies this request because he does not recognize the woman as a parent (due to her sexual orientation and the fact that she was not the birth parent). This would be discriminatory.

When a child is adopted, under the ESA both parents are entitled to a maximum of 37 weeks of parental leave only. However, where a benefits plan provides for extra benefits to be paid to the non-birth parent to encourage bonding in the early days after a child is introduced into the home, these should be available regardless of sexual orientation or adoption.

Example: An employer’s benefits plan provides for 3 – 5 paid days off for the non-birth parent (regardless of gender) during the first month after the child’s birth or adoption. A gay employee is able to claim these benefits when he and his same-sex spouse adopt a child.

v) Pregnancy-related benefits (sex and/or disability):

Employee benefit plans or employment practices that result in disadvantage because of pregnancy are discrimination under the Code on the basis of sex and pregnancy. For example, discrimination may be found in the following circumstances:

  • an employee is denied sick leave benefits that she has requested for health-related reasons relating to the birth of her child (she chose not to go on maternity leave yet under the Employment Standards Act).
  • Pregnant employees on unpaid leaves of absence receive different benefits from other employees on unpaid leave (including vacation pay).

Section 25(2) of the Code permits group insurance contracts between employers and insurers to allow for differential treatment based on sex, as long as they comply with the ESA and regulations. The Act and regulations require employers to provide the same benefit entitlements to employees on pregnancy leave or parental leave that are provided to employees on other types of leave.

The Supreme Court of Canada has also said that, while pregnancy is not an illness or disability, it is a valid health-related reason for being absent from work.[46] So, pregnant employees with health-related needs cannot be treated worse than employees who are absent from work for other health-related reasons, such as illness, accident or disability.

Where an employer has a benefit plan that compensates for health-related absences or provides disability benefits to its employees, a woman should be entitled to disability benefits during that part 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. Treat any health-related portion of maternity leave 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 having to provide a medical confirmation for the absence.

Pregnant employees must be compensated for the full period of their health-related absence, whether it occurs during the pre-natal or post-natal period, including recovery from childbirth. Because women respond differently to pregnancy, requests for health-related absences need to be assessed and granted on an individual basis.

Section 25(2) of the Code permits group insurance contracts between employers and insurers to allow for differential treatment based on sex, as long as they comply with the ESA and regulations. The Act and regulations require employers to provide the same benefit entitlements to employees on pregnancy leave or parental leave that are provided to employees who are on other types of leave.

Under the ESA, 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. Also, if eligible, an employee can claim “maternity benefits” under the federal Employment Insurance Act.

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 has access to health benefits under a workplace sick or disability plan in this situation. In some cases, the start of maternity or parental benefits under the ESA may be deferred until after a sick leave and receipt of workplace health benefits. This must be worked out between the employee and the Employment Standards Branch, which has set rules on when a pregnant woman is entitled to leave and benefits. Where an employee is entitled to sick leave benefits on top of maternity and parental benefits and has an extended leave, the duty to accommodate may require that the employer hold open the employee’s position, subject to the undue hardship standard.

Where an employer provides a top-up for maternity and parental leave benefits, it should be uniformly provided to all employees including people who have newly joined the organization, subject to the undue hardship standard.

The courts have recognized that pregnancy and childbirth place unique demands on women. Providing 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 unique 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 requirements of the post-partum period; and the demands associated with breastfeeding.[47] 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.

Example: A male doctor applied for benefits because he was staying at home to care for his newborn child after his wife returned to work. His application was denied because the applicable program only granted benefits to female doctors. He filed a complaint alleging discrimination based on sex.

Example: A plan provides that a biological mother is entitled to 15 weeks of maternity benefits on top of 35 weeks of parental benefits. At the same time, a mother who adopts a child is only entitled to 35 weeks of parental benefits. This is most likely not discriminatory.

Courts have indicated that the purpose of maternity benefits is to replace the income and protect the employment of biological mothers during the time they are giving, and recovering from, birth. These provisions were not created to encourage bonding or attachment with the child. For example, they are available to mothers who have given up their children for adoption. On the other hand, the employer should take care not to give the impression that an adoptive parent is less valued than a biological parent, and may provide a top-up for a portion of parental leave if this is done for biological parents.

Example: An employer tops up salary to 95% of the employee’s regular salary for 17 weeks of maternity leave for biological parents. Its benefits plan provides a top-up to 95% for the first 17 weeks of parental leave for adoptive parents.

If an employee is denied employment because of pregnancy, this may lead to ineligibility for employment insurance benefits. In general, a woman in this situation would be entitled to compensation for the loss of the benefits she would have qualified for, had she not been denied the opportunity to work.

Example: A pregnant woman was offered a position as a clerk, but the offer was withdrawn when the employer learned that she was pregnant. If the employer had hired her as agreed, she would have received wages from which the appropriate deductions would have been made and she would have been eligible for insurance benefits. She would be entitled to claim lost wages and insurance benefits in a human rights claim.

[42] Conversely, in Ontario Nurses’ Association v. Orillia Soldiers’ Memorial Hospital (1999), 42 O.R. (3d) 692 (C.A.), leave to appeal to S.C.C. refused (December 10, 1999), S.C.C. Bulletin 27176 (Ontario Nurses), nurses on unpaid leaves of absence due to disability did not accumulate service after periods set out in the collective agreement. Also, the employer did not have to contribute premiums to employee benefit plans after the employees had received long-term disability payments for a specified time. The Ontario Court of Appeal held that there was no contravention of the Code because these nurses were not treated differently from people in the comparator group, namely employees who were not working for other reasons.
[43] Ibid.
[44] Gibbs v Battlefords & District Co-operative Ltd. [1996], 3 S.C.R. 566.
[45] Heidt v. Saskatoon (City) (1998), 9 C.H.R.R. D/5380 (Sask. Bd. Inq.), affirmed 10 C.H.R.R. D/5808 (Sask. Q.B.), reversed 12 C.H.R.R. D/387 (C.A.), leave to appeal refused 74 D.L.R. (4th) vii (S.C.C.). The Saskatchewan Human Rights Code contained a provision that prohibiting age discrimination in employment does not prevent operating any term of a bona fide group or employee insurance plan. The Court of Appeal held that the defence had not been made, as no evidence established that the discrimination was reasonably necessary to allow the employer to put into place a viable and cost-effective sick plan. 
[46] Brooks, supra note 23.
[47] See Schafer v. Canada (Attorney General) (1997), 149 D.L.R. (4th) 705, leave to appeal to the Supreme Court of Canada denied on January 29, 1998 and Tomasson v. Canada (Attorney General), 2007 FCA 265 (CanLII).