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Pregnant employee awarded damages in discrimination claim

pregnant-employeeIn a recent matter heard before the Human Rights Tribunal of Alberta (the Tribunal), it was decided that an employer discriminated against its employee in the course of her employment, on the ground of gender, in both sexual harassment and pregnancy. Such action is contrary to the Alberta Human Rights Act (Act). In coming to its conclusion, the Tribunal had to address whether the employee had established a prima facie case of discrimination. If so, did the employer have a defence to the discrimination?

Analysis

1. Did the employee establish a prima facie case of discrimination?

The Tribunal reaffirmed that the complainant has the burden of proof to show a prima facie case of discrimination. The complainant must establish the discrimination on the balance of probabilities. The employee had claimed discrimination in the nature of: (1) sexual harassment in the workplace in the form of two unwelcome comments of a sexual nature and one instance of unwelcome touching; and (2) discrimination on the ground of pregnancy in the form of an unjustified written warning and in the termination of her employment.

In order to establish prima facie case of discrimination on the balance of probabilities, the complainant must establish the following (see Moore v. British Columbia (Education), paragraph 33) (Moore test):

  1. the complainant has a characteristic that is protected from discrimination under the Act;
  2. the complainant suffered an adverse impact in her employment; and
  3. the protected characteristic was a factor in the adverse impact.

In applying the Moore test:

The Tribunal found that the employee’s evidence met the test for establishing a prima facie case of discrimination in the form of sexual harassment on the ground of gender.

The Tribunal affirmed that sexual harassment is discrimination on the ground of gender, and that the Act prohibits discrimination in the course of employment on the ground of gender.

Also, the Tribunal found that the employee had “suffered an adverse impact in the form of enduring sexual comments and touching in the workplace”. The employee described various sexual harassment incidents which involved the employer (i.e. her manager). She described him as being strict, with a violent temper and regular inappropriate comments.

Further, the Tribunal deemed that the employee’s gender was a factor in the adverse impact (paragraph 46).

In addressing discrimination in the form of pregnancy, the Tribunal found that the employee had established a prima facie case of discrimination on the ground of gender, in that she was disciplined and then terminated from her employment due to her pregnancy.

The Tribunal affirmed that pregnancy is specifically included under the protected ground of gender in the Act (section 44(2)).

Also, the Tribunal had found that the employee had “suffered an adverse impact in the form of an employment discipline letter and subsequent termination of her employment”.

Further, the Tribunal found the employee’s pregnancy to be a factor in the employer issuing the discipline and terminating the employee.

In addressing the third branch of the Moore test, the Tribunal cited the case Guay v. 1481979, which explained such principle in the context of pregnancy:

The applicant must show that it is more probable than not that the respondent discriminated against her because she was pregnant. To do this, she does not have to show that the only reason for the termination of her employment was her pregnancy. She can establish discrimination if she can show that her pregnancy was a factor that contributed to the decision to terminate the employment… (paragraph 50)

Looking at the disciplinary letter that the employer gave to the employee, the Tribunal pointed out that the employer expressly identified the employee’s pregnancy as being the cause of the alleged performance issue:

I have explained about your pregnancy to the head office however … and again, said if this employee is not able to perform her duties in the properly and timely manner because of her pregnancy then I suggest you to inform her to find the other employment or leave. (paragraph 52)

The Tribunal had noted that there was no evidence to suggest that the employer considered any form of accommodation for the employee, if it believed that the employee’s pregnancy was impacting her ability to perform her duties. “The only solution to these alleged performance deficiencies arising from her pregnancy was for her to find another job”.

2. Did the employer have a defence to the discrimination?

The employer argued that the Manager was responsible for the discrimination and that it should not be held responsible for the actions of its employee, the Manager. The Tribunal did not accept this as a defence.

The evidence was clear that the respondent hired the Manager to operate the day to day functions of the respondent’s hotel business…It was further clear that the respondent trusted the Manager to oversee the business and to carry out managerial and supervisory functions in the complainant’s workplace. All of the relevant events occurred in this context. Accordingly, it is not a defence to the discrimination to say that the respondent did not condone or know about the Manager’s actions. (paragraph 63)

Two further arguments were also addressed. The employee was disciplined and terminated for performance concerns and not her pregnancy, and that the employee quit.

With respect to the first argument, the Tribunal had found that there was no evidence of actual performance concerns. The Tribunal noted that, “even if there were any performance concerns, there was no attempt by the respondent to accommodate any impact the complainant’s pregnancy may have had on her ability to do her job. I do not accept performance concerns or inability to accommodate as a defence to the discriminatory actions”. (paragraph 67)

In addressing the second argument, the Tribunal found that there was no evidence that the employee quit her employment. Rather, the Tribunal permitted the employee’s evidence that, “she was both shocked and devastated to receive the termination letter and she desperately wanted to continue her employment until her maternity leave was to commence”. (paragraph 69)

For employers

The following are some takeaways from the above case that employers should keep in mind:

  • Sexual harassment is discrimination on the ground of gender (gender is a protected ground under s. 7(1) of the Alberta Human Rights Act (the Act)) and pregnancy is specifically included under the protected ground of gender in section 44(2) of the Act.
  • The complainant has the burden of proof to show a prima facie case of discrimination. The burden of proof then shifts to the respondent to justify the conduct or practice. The complainant must establish the discrimination on the balance of probabilities.
  • In order to establish prima facie case of discrimination on the balance of probabilities, the complainant must establish the following:
    • the complainant has a characteristic that is protected from discrimination under the Act;
    • the complainant suffered an adverse impact in her employment; and
    • the protected characteristic was a factor in the adverse impact.
  • To claim that the respondent did not condone or know about an employee’s actions (in this case the claimants Manager’s actions) is not a defence to discrimination.
  • Monetary compensation for injury to dignity, feelings and self-respect acknowledges that the injury to a person who experiences discrimination is more than just quantifiable financial losses, such as lost wages (Arunachalam v. Best Buy Canada Ltd.). In the province of Alberta, there is no statutory limit on the amount of damages available for mental distress, injury and loss of dignity that flow from discriminatory conduct (Walsh v. Mobil Oil Canada).

Cristina Lavecchia

Cristina is an editor and researcher at First Reference. She is a licensed paralegal and obtained a Bachelor of Arts degree, Political Science major at York University. During Cristina's paralegal and undergraduate studies she studied employment standards, occupational health and safety, and workplace safety and insurance. Read more
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