The applicant in Abrams v. Kupar alleged that, during an interview for a job as a software technician, she asked whether her pregnancy would be an issue. While there were differing accounts as to the response, it was agreed that the company was aware of the applicant’s pregnancy prior to hiring her.
In the matter of Abrams v. Kupar, the applicant, who was pregnant at the time, was terminated from a new job. The applicant believed it was due to the fact that she was pregnant. The respondent alleged that the termination had nothing to do with her pregnancy, but rather that the employee was not suited for the job. The matter was heard at the Human Rights Tribunal of Ontario. The Tribunal’s decision was in favour of the respondent.
The applicant was hired as a software technician on May 14, 2014, and was terminated approximately nine days later. The applicant alleged that during the interview process, she asked the respondent whether her pregnancy would be an issue, as she was in her third month. While there were differing accounts as to the response, it was agreed that the respondent was aware of the applicant’s pregnancy prior to being hired.
The applicant’s job experience and credentials were submitted as evidence by the applicant, and there was a consensus from both parties that she appeared to be qualified.
The respondent testified that in spite of the applicant’s qualifications, within a short period the company concluded that “she was not suited for the job”, citing factors such as issues with documents that were drafted by the applicant. There was also the allegation that in spite of her leadership position, the applicant did not seem to be a “leader” but acted more like a co-worker on the team.[i]
The applicant disagreed with the respondent’s version of facts and cited examples of where she had allegedly received positive feedback, and further stated there was insufficient coaching.
Section 5(1) of the Code prohibits discrimination on the basis of sex. Section 10(2) of the Code states:
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.[ii]
Under the “Code”, once a prima facie case of discrimination has been made out by the applicant, the burden then shifts to the respondent to present a plausible non-code related explanation for the employer’s action. If it is found that pregnancy was a factor in the decision to terminate, the employer may be culpable. The applicant’s pregnancy need not have been the sole factor leading to her termination but rather a factor.
After a review of the facts, the Tribunal based its decision in part on two factors. The first was that the respondent had hired the applicant knowing that she was pregnant suggested the pregnancy was not an issue with the respondent. Second, based on the respondent’s evidence, it seemed credible that due to the job-related issues alleged, and the corroboration of these issues, that the applicant was terminated based on poor job performance rather than the “Code” related ground of pregnancy.
The application was dismissed.
The onus is on the applicant to establish a nexus between the respondent’s conduct and any alleged breach of the “Code”. The respondent must provide a plausible non-code related explanation supported by evidence for their behaviour in order to avoid an unfavourable outcome at the Human Rights Tribunal of Ontario.
[i] Abrams v. Kupar 2016 HRTO 1082 (CanLII) Para. 15
[ii] Ibid. para. 21
Pregnancy and the burden of proof: Grudonic v. Ray Daniel Salon & Spa
Sloan v. Just Energy Corporation: Pregnancy and fairness under the Code
Maciel vs. Fashion Coiffures: pregnancy and employer’s continued obligation under the “Code”
Lugonia v. Arista Homes: Pregnancy, short-term contracts and the “Code”
Does the Tribunal have the power to deal with allegations of “unfairness” at work?
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