Pregnancy discrimination complaints on the rise

Greater awareness, difficult labour market could partly explain increases
By Amanda Silliker
|Canadian HR Reporter|Last Updated: 04/09/2012

Pregnancy discrimination complaints are on the rise, according to various human rights commissions across the country.

In British Columbia, 21 out of 165 cases represented by the B.C. Human Rights Coalition in 2010-11 were based on pregnancy discrimination. That’s up about 50 per cent from the number of pregnancy-related cases it took on in 2008-09, said Robyn Durling, communications officer at the Vancouver-based coalition.

“I had a co-worker say it’s somewhat medieval that this is still allowed to go on, and I do see there are some sophisticated employers that get it, but there’s also a lot of mom-and-pops that don’t really understand the law and don’t recognize it is discriminatory,” he said.

In Saskatchewan, 10.3 per cent of all complaints made to the province’s human rights commission were related to pregnancy in 2010-11. This is a significant increase from 2008-09, when 4.2 per cent of all complaints were pregnancy-related, according to the Saskatchewan Human Rights Commission’s annual reports.

The Canadian Human Rights Act prohibits pregnancy discrimination, which includes any action, decision or policy that negatively affects an employee because of pregnancy or pregnancy-related circumstances. Pregnancy is defined in such a way that it runs from conception to the post-pregnancy period.

It includes fertility treatments, medical complications, miscarriage, abortion, childbirth and breastfeeding. The act covers federally regulated employers but similar legislation exists throughout the provinces.

The most obvious form of pregnancy discrimination is the refusal to hire or promote a woman because she is pregnant, said Elizabeth Shilton, a senior fellow at the Centre for Law in the Contemporary Workplace at Queen’s University in Kingston, Ont.

“For example, if a (pregnant) woman has been in line for a promotion and she all of a sudden doesn’t get it, which may then be related to the employer’s perception that she will not be as dedicated to the job if she doesn’t come back,” she said.

About one-half of the pregnancy discrimination cases the B.C. coalition sees are about pregnant employees being terminated, said Durling.

“Somebody discloses the fact they’re pregnant and the employer can potentially say, ‘Well, you’re fired, we don’t need you anymore,’” he said. “I have represented recently in a number of cases that are a variety of those kinds of scenarios.”

The balance of complaints he sees come from the failure to return a woman to work once she has completed her maternity leave, said Durling.

Issues during an employee’s return to work are the most common forms of pregnancy-related discrimination, said Clarence Bennett, a partner at Stewart McKelvey law firm in Fredericton.

“So the employer has replaced them in one form or another and they ended up liking the person they replaced them with better… so when the person comes back, they tend to have their role diminished a little bit or they’re doing things they didn’t do before,” he said.

Under the Canadian Human Rights Act, employees must be allowed to return to their same job, or a similar job, after maternity leave.

In Ontario, 14 per cent (3,611) of the nearly 26,000 inquiries the Human Rights Legal Support Centre received in 2010-11 were related to gender discrimination, and the “vast majority” of those were related to pregnancy, said Jennifer Ramsay, communications and external relations co-ordinator at the centre in Toronto.

And the New Brunswick Human Rights Commission received 134 inquiries from employees and employers concerning pregnancy in 2011, and eight written complaints of pregnancy discrimination from employees, said Randy Dickinson, chair of the commission. This compares to 93 inquiries and five complaints the commission received in 2009.

One reason for the prevalence of pregnancy-related complaints may be due to increased awareness, said Bennett.

“I can’t say now it’s on the rise because there are more women in the workplace, I don’t think that makes sense. I think the only thing that makes sense is women are not as willing to put up with it anymore,” he said. “People are more aware of their rights and more aware of the avenues in which they can challenge it.”

The tough job market may also be playing a role in the increased number of complaints, said Shilton.

“When economic times are good… women may decide it’s just not worth the hassle to complain, that they will have their children and look for another job when they come back. But if they’re not feeling secure about their ability in finding another job or their partners are unemployed, they are more likely to feel it is worthwhile to fight for the jobs they have,” she said.

And when economic times are bad, employers — especially small and medium-sized businesses — may be seeking ways to reduce costs, or potential costs, so they are less willing to hold jobs open for pregnant women or give jobs to pregnant women, said Shilton.

Accommodation

Employers have a legal duty to accommodate pregnant employees when a request for accommodation is made, according to the Canadian Human Rights Act.

The best way to approach this is to consider pregnancy as somewhat akin to a disability, said Durling.

“If they are standing all day and they requested a chair… or they need to be accommodated away from work because of morning sickness, those kinds of things need to be accommodated,” he said.

Accommodations may also need to be made in certain environments such as veterinary offices, hair salons and dental offices because pregnant women need to stay away from certain toxic chemicals, medications and X-ray machines, said Durling.

Pregnancy discrimination complaints can be quite costly to employers. If a case goes before a human rights tribunal and the employer loses, it will most likely be faced with compensatory damages — quantifying the financial loss of the pregnant employee — and there can also be awards for pain and suffering, depending on the nature of the discrimination, said Shilton.

But the biggest deterrent is it’s embarrassing for employers to be faced with these types of complaints, said Bennett.

“I have some very cautious clients who call and say, ‘This person is pregnant, here’s what we’re doing, is this OK?’ and I think that’s why they’re doing that, they want to make sure they’re not sort of labelled as someone whose stuck in the 18th century — that’s the stigma.”


Tips for employers

Accommodations

Employers should seek out creative and flexible responses to individual pregnancy-related needs. Temporary solutions can include:

• flex-time

• changing or sharing shifts

• light duties

• job-sharing or task-sharing arrangements

• safer duties

• modified uniforms

• a different job

• extra washroom breaks as needed

• no shift work

• time off for pregnancy-related medical appointments

• no overtime

• preferred parking

• leave or a leave extension

• flexible start time to deal with morning sickness or breastfeeding schedules

• part-time work

• allowing employees to breastfeed a newborn during work visits

• alternate work arrangements

• longer or extra breaks and a private place to breastfeed or express milk.

Source: Pregnancy and Human Rights in the Workplace: A Guide for Employers, Canadian Human Rights Commission

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