Pregnancy Discrimination in the Workplace

Protection against discrimination in employment extends to all aspects of the employment relationship, from the recruitment and selection process, through all the various aspects of the working relationship, to the termination of the employment. Pregnant women have significant legislated rights other than those under the Human Rights Code, hereinafter referred to as “the Code”, most importantly under the Ontario Employment Standards Act (ESA) and the federal Employment Insurance Act (EIA). These rights may overlap with the Code protections, or may provide additional protections. Common negative stereotypes and attitudes are often causes for discrimination in employment on the basis of pregnancy, such as the fact that a pregnant woman will not be able to work efficiently and effectively during her pregnancy and that accommodation of her needs will be onerous. This idea is enduring and persistent, even though it is not tolerated by the facts and can be influential to employers to not hire pregnant women. Pregnancy in the workplace is a fundamental human rights issue of equality of opportunity between women and men.

Women should not suffer negative consequences in the workplace simply because they are pregnant. Workplace rules and job functions may affect a pregnant employee differently than other employees. For example, in this case, the employer refused to hire the job applicant who was pregnant for 7 months, because of the period of her pregnancy and that she would not be able to carrying heavy supplies from delivery vans into the kitchen, although she was willing to carry moderately heavy ones. This example shows the job applicant receiving differential treatment and negative consequences. British Columbia (Public Service Employee Relations Commission) v. British Columbia Government Service Employees’ Union (1999) SCC 48, known as Meiorin for short, created a unified test to determine if a violation of human rights legislation can be justified as a Bona Fide Occupational Requirement (BFOR). In this case, Tawney Meiorin was employed as a firefighter by the British Columbia ministry of Forests.

The government adopted a series of fitness tests that all employees were required to pass, three years after being hired. Meiorin passed all the tests except for one that required her to run two and a half (2.5) kilometers in eleven (11) minutes. Her best time was 49.4 seconds over the minimum allowed. Due to this, Meiorin was fired. The Supreme Court of Canada examined the previous methods of analyzing Human Rights violations, noting where they were deficient in that the research that the tests were based on was incomplete and “impressionistic”, and did not take into account the differences between women and men in establishing a standard. The Court then proposed a new “Meiorin Test”. In this test an employer can justify the disputed standard by establishing on the balance of probabilities that the employer adopted the standard for a purpose rationally connected to the performance; that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and that the standard was reasonably necessary to the accomplishment of that legitimate work-related purpose.

To show this, it must be demonstrated that it is impossible to accommodate separate employees sharing the characteristics of the plaintiff without imposing undue hardship upon the employer. Moreover, prima facie cases of pregnancy discrimination occur when the employee, job applicant in this case, demonstrates that she was pregnant at the relevant time and the employer was aware of her pregnancy, causing her to experience adverse treatment with respect to her employment. As explained in the facts of the case and in accordance with the Meiorin test, the employer justified the discrimination because he or she believes that the job requirement to lift heavy supplies could not be fulfilled by the job applicant due to her pregnancy, causing differential treatment to the applicant. The applicant notified the employer of her pregnancy, which triggered the employer to point out the job requirement of lifting heavy supplies. Although the applicant was willing to lift moderately heavy supplies, the employer still refused to hire her for the mere fact of her advanced period of pregnancy, therefore creating a prima facie case.

Secondly, The Canadian Human Rights Act, hereinafter referred to as “the Act”, prohibits discrimination related to pregnancy. Since women are the only ones who can become pregnant, discrimination related to pregnancy is a form of sex discrimination. Discriminatory practices related to pregnancy, such as negative treatment, termination of employment, harassment, and refusal to hire or promote are against the law under the Act. According to subsection 5(1) of the Code, every individual has a right to be treated equally regarding employment without discrimination of “race, ancestry, [sex], sexual orientation, gender identity, gender expression, etc.” Further, according to subsection 10(2) of the Code, “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.” Therefore, as shown in the facts of this case, the employer infringed upon these rights, giving the job applicant the right to sue based under sex discrimination, since only women can become pregnant.

This violation of the Code is subject to the bona fide requirements because the fact that the applicant is pregnant is not rationally connected to the performance of the job, and the applicant would be able to carry out majority of the job requirements. Similarly to the Meiorin case, whether the applicant was pregnant or not, the employer failed to consider the strength differences between men and women. If there are boxes that are exceptionally heavy, a male might still have to be the one to carry it from the delivery van to the kitchen, instead of a non-pregnant female. This is because men and women have different standards of strength. Consequently, adjustments to working conditions may be required to reduce or eliminate discriminatory effects. Unless the accommodation will cause undue hardship, employers have a legal obligation to accommodate needs related to pregnancy. The pregnant employee, the employer, and other parties such as union representatives, must cooperate and compromise to find reasonable and practical solutions.

In most cases, accommodations for needs related to pregnancy involve increasing the flexibility of policies, requirements, and rules, and will not require significant expenses. Therefore, in this case, the employer could’ve hired the applicant because she was showing her ability and willingness to fulfill all job requirements, including lifting moderately heavy supplies that any non-pregnant female could lift. The applicant was trying to compromise with the employer regarding the abovementioned job requirement, however the employer did not show any signs of cooperation, compromise, or consideration of strength standards. In the case of Dorvault v. Ital Décor Ltd. (2005) BCHRT 148, a woman applied for an office position. After her interview, the employer called her and offered her a position. At that point, the woman told the employer that she was pregnant, and would need to take a maternity leave in approximately six month’s. The employer said that he would have to consult his business partner, and he would call her back, however, the pregnant woman never heard from the company again. The Tribunal found that the employer had decided not to hire the woman based on her pregnancy.

This is an example of how employers discriminate on the basis of pregnancy, failing to realize the consequences they may endure such as being sued. Discrimination on the basis of pregnancy constitutes unlawful sex discrimination. It is against the law in Canada for an employer to refuse to hire a woman because she is pregnant if she is able to perform the “essential duties” of the job. The applicant in this matter seemed to be able to carry out the essential duties of the job, which were to help around the kitchen, including carrying moderately heavy supplies to the kitchen from delivery vans. The employer in this matter could have made accommodations such as taking into consideration strength standards for men and women. If employers were more careful in the hiring phase with respect to the things they say, reasons they give for not hiring, and considering all circumstances surrounded them and the employee such as various standards, like strength, then they would not have to go through disputes such as being sued for refusal to hire.