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.
Yosie Saint-Cyr
Human Resources and Compliance Managing Editor
Yosie Saint-Cyr, LL.B. Managing Editor
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Thanks Adam and Molly for the comments. I totally agree… the employer acted quickly without thinking of the consequences and may have passed over a very good employee!
Also, the employee was in her right to not tell the employer of her pregnancy. The employer’s action show just why the law is set up that way!
I think it is a shame that the employer fired her. She has a right to have a child and a job. There is no law to disclose her personal state. They obviously found her to be the right candidate and let her go because of the “inconvenience” of her pregnancy.
She could have been one of their best employees but now they will never know and are out $35,000 than they would have been if they obliged her Human Rights!
One thing I found rather shocking about this case was the reaction from readers on the Toronto Star’s website.
So many people believed that the young woman acted duplicitously by neglecting to reveal that she was pregnant at the interview, and that the employer was completely justified in firing the woman on her very first day for precisely the thing she feared would happen and was protecting herself from if she had spoken out right away.
This young woman might be a single, unemployed, and broke mother if she didn’t get that job; is this preferable to the inconvenience the employer would have faced when the woman went on maternity leave? Unfortunately, now the woman might be a single and unemployed mother, but at least she won’t be broke–for the time being.