The Ontario Human Rights Tribunal recently awarded a woman $35,000 after her employer fired her when she revealed on her first day of work that she was four months pregnant. (The award covered $20,000 in lost wages and benefits, and $15,000 for injury to dignity, feelings and self-respect.) In addition to the damage award, given the overwhelming number of women working for the employer, the tribunal ordered the company to implement and distribute a written policy on the accommodation of pregnancy to ensure future compliance.
The facts of this case (Maciel v. Fashion Coiffures) indicate that when the employee applied for the job, she did not inform the employer that she was pregnant. The woman admitted in court that the employer was unaware of her pregnancy at the time of hiring.
This case demonstrates that it is still difficult in our day and age for women to inform their employers that they are pregnant and will be taking time off from work after they give birth without the fear of losing their jobs.
Under human rights legislation in Ontario and across Canada, job applicants are not required to divulge during an interview or at any particular time after they are hired that they are pregnant. Also, it is illegal to fire workers because they are pregnant or are taking (or have taken) maternity/pregnancy or parental leave.
Matt Lalande’s blog on Employment-Law.ca indicates that he was surprised that in 2009 employers still do not fully comprehend the potential ramifications and risks they face by discriminating against women. So am I, to tell you the truth. However, Kate Sellar, a lawyer at the Human Rights Legal Support Centre who represented the employee in this case, stated in the Centre’s press release that the Tribunal receives 40 calls a week from pregnant women who were fired once the employers knew that they were pregnant.
When you read the facts of this case, and as noted by the adjudicator, it is clear that the employer failed to prove a non-discriminatory explanation for the termination of the employee’s employment, and on the balance of probabilities, the employee’s pregnancy was likely the only factor in the decision to terminate. Adjudicator Naomi Overend continued in her written decision, “I am mindful of the vulnerability of the applicant. She was young, just out of school, and coping with an unplanned pregnancy. This was to have been her first full-time job, which she testified she was very excited about, making the experience that followed that much more distressing.”
This decision is a serious reminder to all employers, not just in Ontario, that it is hard to explain terminating a pregnant employee or an employee on maternity/parental leave. There is no loophole; you must know the law and comply.
Human Resources and Compliance Managing Editor
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