Discrimination 'alive and well' around pregnancy, breastfeeding

Ontario's human rights commission updates policy for first time since 2008
By Liz Bernier
|Canadian HR Reporter|Last Updated: 12/01/2014

The Ontario Human Rights Commission (OHRC) has launched an updated policy on discrimination around pregnancy and breastfeeding.

The policy was released in partnership with the provincial Ministry of Health and Long-Term Care, according to the OHRC. 

In addition to re-emphasizing women’s rights under the human rights code, the policy was updated to incorporate case law changes since 2008 — the last time the policy was updated. 

It was also altered to be consistent with other OHRC policies.

One key change is an expanded definition of “pregnancy” to include those who are trying to become pregnant. 

“Women should not face discrimination because they are or have been pregnant, or are trying to become pregnant,” said Barbara Hall, chief commissioner of the OHRC in Toronto. 

“The law hasn’t changed. Women have had these rights for many, many years. But we continue to see women not getting hired or losing their jobs because they’re pregnant, or getting fired when they return after pregnancy.” 

The policy includes updated examples and case law, and is written in plain language, said Hall.

The workplace is the most frequent venue for discrimination or harassment because of pregnancy, said Anya Kater, senior policy analyst at OHRC in Toronto. 

“Most human rights claims based on discrimination because of pregnancy relate to employment, but they can also relate to housing, goods, services and facilities, contracts and membership in unions, trade and professional associations,” she said. 

And the discrimination doesn’t just affect individuals who are currently pregnant. 

“Discrimination based on pregnancy can happen when a woman is trying to get pregnant, was pregnant or states she intends to have a child, will be taking a maternity leave, has an abortion or experiences complications related to an abortion, or has a miscarriage or stillbirth, or has complications related to a miscarriage or stillbirth,” said Kater. 

“Discrimination can also happen because a woman experiences complications related to pregnancy or childbirth, lacks energy due to pregnancy, is perceived to be too ‘big’ or ‘fat’ while pregnant or is unable to wear a form-fitting uniform, or is recovering from childbirth, receiving fertility treatments or is breastfeeding.” 

It’s important for employers to understand that all of these issues relating to pregnancy or breastfeeding are protected grounds of discrimination under the human rights code. 

Breastfeeding also protected

The OHRC policy also provides a detailed explanation of women’s rights when it comes to breastfeeding, said Hall. 

The policy has that focus because breastfeeding isn’t just a personal choice or a health issue — it’s also a human rights issue, said Dipika Damerla, Mississauga East-Cooksville MPP and associate minister of health and long-term care (long-term care and wellness).

“I’m delighted to support anything that makes it easier for women to breastfeed their babies,” said Damerla. 

Women are often prevented or deterred from breastfeeding in public spaces and workplaces, said Hall. 

“We (hear) almost weekly about a shopping centre, a swimming pool or a restaurant asking a woman to stop breastfeeding, even though she has every right to do so.”

These are just a few of the reasons the policy was updated, she said.

“(It’s) to provide a reminder that these rights do exist and that employers, landlords and service providers have a legal obligation to respect these rights,” said Hall. 

“When it comes to breastfeeding, it’s the mother and only the mother… who gets to decide where, when or whether to breastfeed.”

In rare cases, there may be health and safety risks that can lead to exceptions, she said.

“But the general rule is that women can breastfeed anytime, anywhere.” 

Discrimination of all kinds

The OHRC policy recognizes that women face “unique experiences of discrimination” because of their ability to become pregnant, said Kater. 

“Having children benefits society as a whole — women should not be disadvantaged in society because they are or have been pregnant,” she said.

“The Supreme Court of Canada recognized (the) social and financial burdens and costs associated with having children should not rest entirely on women, and although women have made major advances in gender equality, discrimination because of pregnancy continues to be common in society, particularly at work.”

 That discrimination can be direct or overt, where a person or organization deliberately treats a woman negatively, or it can be indirect and subtle — even carried out through another person or organization. 

It can also be systemic, embedded in the patterns of behaviour, policies and practices that are part of an organization’s structure or culture, said Kater.

Intersecting forms of discrimination

Pregnancy discrimination can also intersect with other forms of discrimination, such as racial discrimination, said Kater. 

“There are distinct, negative stereotypes about pregnant women who are parenting on their own, are young, have a disability, receive social assistance, are racialized or Aboriginal, or are lesbian or bisexual. 

“Discrimination because of pregnancy may overlap with discrimination based on family status,” she said. 

This kind of discrimination can affect men as well because of accommodation needs or their relationships with women who are pregnant. 

Another new aspect of the updated policy is it includes a section on trans people and people of diverse genders, to include the perspectives of those individuals as well, said Kater. 

Pregnancy discrimination still common occurrence

The updated policy from the OHRC is important, said Kate Sellar, legal counsel at the Human Rights Legal Support Centre in Toronto, because these types of discrimination are still so common. 

“We’ve had protection in the code for women who are pregnant and breastfeeding for a really long time but, unfortunately, we are still constantly battling for that right for women to both work and have a family,” she said. 

“So those issues are still very much alive and well, unfortunately, and the first message we have for women coming to us is ‘You’re not alone.’ The problem still exists, and it exists in a whole range of workplaces.”

Not all employers are 100 per cent aware of what their obligations are in terms of pregnant employees or employees who are returning from a pregnancy-related leave, said Sellar. 

So it is important for organizations to avail themselves of the information and to check out the Ontario commission’s updated policy, she said.

“It is really comprehensive and helps employers to figure out how they can make sure that women are fully participating in the workforce and included and being treated fairly.”

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