Every person living and working in Ontario is entitled to be free from discrimination in the context of their housing, employment, and services, among other scenarios. Ontario’s Human Rights Code defines the bases upon which a person may complain of discrimination to include, but are not limited to, race, gender, sexual orientation, and sex.
In specific reference to pregnancy in the context of employment, this means that an employer cannot terminate a person’s employment simply because she advises her employer that she is pregnant, wishes to discuss maternity leave benefits, or otherwise seeks to ascertain her rights and responsibilities concerning her pregnancy with the employer.
Employers who ignore their obligations under the Code to ensure a discrimination-free workplace for all employees, including those who are or may become pregnant, may find themselves paying significant damages to a victim of their failure.
Pregnant Employee Fired After One Week of Employment
The case of Iskander v 2363327 Ontario Incorporated involved a complainant employee who had advised the respondent employer of her pregnancy during the onboarding process. The complainant had been hired to work as a cook in the defendant’s restaurant in April 2018. Upon hiring, the complainant advised her new employer that she was pregnant and needed to work a minimum number of hours per week to qualify for parental and maternity leave benefits upon the birth of her child. The company acknowledged the complainant’s needs and purportedly agreed to provide her with full-time or near full-time hours. However, the complainant was scheduled to work only 28 hours in her first week of employment, below the threshold required for government maternity and parental benefits schemes. As such, the employee communicated to the respondent’s employer her desire to increase the hours she was scheduled to work in the coming weeks and months.
The employer responded via text message that the respondent restaurant no longer required the complainant’s services as the restaurant owners understood, per the complainant’s Facebook, that she intended to leave her employment as soon as she birthed her child. As such, the employers had hired an alternate cook for the restaurant. The complainant’s employment was terminated immediately.
The complainant commenced a complaint before the Ontario Human Rights Tribunal in which she alleged discrimination in her employment based on pregnancy.
What Constitutes Discrimination Based on Sex?
Section 5 of the Code dictates that every Ontarian has the right to equal treatment in their employment without discrimination because of, amongst other things, race, ancestry, sex, sexual orientation or marital status. Section 10 of the Code further dictates that the category of sex “includes the right to equal treatment without discrimination because a woman is or may become pregnant.”
The person who alleges the discrimination bears the onus of proving, on the balance of probabilities (i.e., to a certainty of 51%), that the Code has been breached. To satisfy the balance of probabilities test, the complainant must provide clear, cogent and convincing evidence of the breach alleged. Nevertheless, the Tribunal recognizes the nebulous nature of discrimination claims and how difficult it can be to prove the same. As a result, it is often undertaken to consider surrounding circumstances and inferences to conclude whether discrimination occurred as alleged.
The Test for Sexual Discrimination
To be successful in proving a claim of discrimination based on sex, the complainant must prove that her pregnancy played at least some role in the termination of her employment, though, importantly, it need not comprise the sole or even the most significant reason. As stated by the Tribunal in this decision, “if such an improper motive tainted the respondents’ conduct to any degree (no matter how small), a contravention of the Code is established.”
Was the Complainant’s Pregnancy the Cause of her Termination?
The Tribunal considered the complainant’s testimony for the termination of her employment and noted that the complainant was confused and stunned by the respondents’ actions, given that she had never discussed her plans post-birth of her child nor suggested that she did not intend to return employment. The respondents claimed in their reply to the complaint of discrimination that they had read a publicly available Facebook exchange between the complainant and an unknown woman in which the complainant had responded to a question regarding whether she was ‘back in Canada’ with “Just for a bit.” The respondents took this as confirmation that the complainant did not intend to stay with her employment post-birth and thus terminated her employment.
The complainant testified in this matter that the woman to whom she was responding in the Facebook post was a relative to whom she was not close and had not advised of her pregnancy; as such, she had responded to the questions asked in a manner intended to forestall any further questions from a nosy relative. At no time did the respondents ever ask to discuss the Facebook post with the complainant, nor did they ask her about her plans post-birth of her child; rather, they terminated her employment immediately and with significant consequence to the complainant, whose plan to accrue sufficient hours of employment to ground her claim for maternity/parental benefits, was thwarted.
For all of these reasons, the Tribunal was satisfied that the complainant had proven her claim of discrimination in employment based on sex.
What Remedies are Available for Discrimination in Employment based on Sex?
Section 45.2 of the Code defines the Tribunal’s remedial authority to include the ability to order financial restitution payable by the perpetrator to the victim of the discrimination, the ability to order restitution other than financial by the perpetrator to the victim, and the ability to order any party to the complaint to do or not do, any particular thing that the Tribunal opines will promote compliance with the Code. Monetary compensation, where sought, often includes damages for injury to dignity, feelings and self-respect and is not subject to a defined maximum.
When the complaint involves employment discrimination, the complainant may seek damages for earnings or benefits, including government benefits such as maternity leave, lost due to the discriminatory behaviour.
The Appropriate Remedies in this Case
In this case, the appropriate remedies were determined to include $15,000 in compensation for injury to dignity, feelings and self-respect, $7,499 in damages for earnings lost because of the complainant’s improper termination, and $15,350 in lost EI and parental leave benefits for which the complainant would have been eligible had the respondents not wrongfully terminated her employment for discriminatory reasons. Once interest is added to those amounts as ordered in the tribunal’s ruling, the employer owed the employee approximately $40,000 in total damages, which is a significant amount because the employee had only worked for the employer for one week.
Toronto Employment Lawyer Helping Employees With Their Employment Discrimination Claims
If you are an employee facing discrimination or other violations of your human rights in your employment or an employer concerned about accommodating the disabilities or Code-protected characteristics of your employees, then you need excellent legal advice to ensure that your rights and interests are asserted and protected at every step of the way.
Fortunately, the Haynes Law Firm is here to help. From our offices in downtown Toronto, Ontario, the Haynes Law Firm is proud to provide shrewd, insightful legal advice to employers and employees seeking guidance regarding employment law. Contact us online or via telephone at (416) 593-2731, and one of our friendly, helpful staff will be pleased to schedule a confidential consultation.
