Written on behalf of Peter McSherry
In a recent Alberta case, the Human Rights Tribunal ruled that an employer had discriminated against an employee on the basis of gender (pregnancy) despite its claim that it had no knowledge of her pregnancy at the time it fired her.
Law on Discrimination Based on Pregnancy in Ontario and Alberta
In Alberta, as in Ontario, it is illegal to discriminate against a person based on gender/sex. Discrimination based on gender/sex includes discrimination based on pregnancy.
Specifically, s. 10(2) of Ontario’s Human Rights Code states:
“Pregnancy (2) 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.”
Similarly, s. 44(2) of Alberta’s Human Rights Code states:
“(2) Whenever this Act protects a person from being adversely dealt with on the basis of gender, the protection includes, without limitation, protection of a female from being adversely dealt with on the basis of pregnancy.”
Pregnant Employee Seeks Accommodation
The employee had worked as an instructor at a technical college in Alberta for approximately two years.
On May 8, 2013, the employee found out that she was pregnant after going to see her doctor. They discussed the high-risk nature of the pregnancy and the need for accommodation at work, including a reduced workload, changing her hours of work to address acute morning sickness, and imposing a physical lifting restriction.
The next day, she met with the employer and advised that she had a medical issue that required accommodation, including a reduced workload and no morning teaching duties.
There was a brief discussion about the lifting restriction and the possibility of a leave of absence but no resolution on the accommodation request occurred during the meeting. Instead, the parties agreed to meet again the next morning to continue the discussion.
Employee Terminated After Seeking Accommodation
On the morning of May 10, 2013, the employee again met with the employer. It was a short meeting at which the employer told the employee that her employment was being terminated.
As a result, the employee filed a complaint with the Human Rights Tribunal alleging discrimination based on gender (pregnancy). She claimed that when she asked for accommodation, she specifically told the employer that she was asking on the basis of her pregnancy.
In response, the employer claimed to have no knowledge of the employee’s pregnancy. It stated that the employee only told it that she had a medical condition and was seeking accommodation. The employer contended that it did not inquire into the nature of her medical condition and that its decision to terminate her employment the next day was due to her request for accommodation. It argued that in order to prove discrimination based on pregnancy/gender, the employee had to prove that it had specific knowledge of the pregnancy, which it denied.
Court Rejects Employer’s Claim On Pregnancy
At the outset, the Tribunal rejected the employer’s claim and found that the employee had made out a prima facie case of discrimination, stating:
“It is unnecessary to resolve the dispute in the evidence about whether the complainant told [the employer] that she was pregnant or not, because discrimination is established either way. It is undisputed that the complainant informed the [employer] of a medical issue and requested accommodation. The medical issue and request for accommodation were both related to her pregnancy. [The employer] conceded that [it] did not inquire into the nature of the complainant’s medical condition, and that [its] decision to terminate her employment the next day was due to her request for accommodation. The complainant’s pregnancy was a factor in the termination because her pregnancy was the medical condition that required accommodation. That accommodation triggered her termination….
The [employer] chose not to make further inquiries about the nature of the medical condition or possible accommodation. It cannot hide behind its own inaction to say that the wrong protected ground was cited. A “medical condition” could relate to several protected grounds, including physical disability, mental disability and, as here, gender (pregnancy). The fact that the [employer] did not know exactly what protected ground the medical condition related to does not insulate it from liability for discrimination when it knew that a protected ground was involved and decided to terminate her because she asked for accommodation.”
Tribunal Rules in Favour of Employee
Because the employee had proven a prima facie case of discrimination, the Tribunal stated that the legal burden shifted to the employer to establish a defence.
Ultimately, the Tribunal held that the employer had not established a valid legal defence and upheld the employee’s complaint.
In the result, the Tribunal, therefore, ordered the employer to pay the employee $35,000 in damages to dignity and lost wages.
Contact Guelph Employment Lawyer Peter A. McSherry for Experienced Advice on Discrimination in the Workplace
If you feel that your rights have been violated, seeking the advice of an experienced and informed employment lawyer can help you understand your rights and your options to remedy the situation.
The Ontario Human Rights Code prohibits discrimination and harassment based on race, colour, ethnic origin, religion, gender, age, disability, sexual orientation, marital status and family status. If you feel that your rights have been violated, seeking the advice of an experienced and informed employment lawyer can help you understand your options to remedy the situation. At Peter A. McSherry Employment Lawyer in Guelph, I have represented clients in all areas of employment since being called to the Ontario Bar in 1997. When you work with me, you will meet and discuss your case only with me. I provide each of my clients with compassionate care, attentive service and the efficient resolution of legal issues. Contact me today to schedule an initial consultation by calling my office at 519-821-5465 or by e-mail. Harassment and discrimination cases are not to be taken lightly. Your rights deserve protection, and you deserve to work in a non-hostile work environment.