Discriminating against pregnant women has a high 'price tag'
A young woman who revealed she was pregnant on her first day of work at a hair salon only to be fired shortly thereafter was a victim of discrimination, the Ontario Human Rights Tribunal has ruled.
Jessica Maciel, 20, was fresh out of college when she applied for a job as a receptionist at two related hair salons, L’Attitudes and Nino D’Arena, both located in a mall in Mississauga, Ont. After a successful interview and trial session, the manager offered Maciel the job. She began a supervised training period on Aug. 11, 2008.
Soon after she began her first shift at Nino D’Arena, Maciel felt sick and revealed to the manager she was four-and-a-half months pregnant. Maciel assured the manager she planned to work at the salons for the long term, but the manager was concerned about the pregnancy. Though Maciel’s preference was to work full time, she testified she offered to work part time if that helped. The manager said she would have to speak to head office and 15 minutes later, according to Maciel, asked her to pack up and leave.
The next day, the manager told Maciel she couldn’t fill the position for which she was hired because she would be going on maternity leave. When Maciel protested the legality of firing her for being pregnant, the manager said pregnancy was not the reason but rather the fact she would only be working part time. Despite Maciel’s contention she was willing to work full time, she received a letter stating she had asked for a part-time position.
The tribunal had doubts about the manager’s reasoning, finding it unlikely Maciel would apply for and accept a full-time position and then ask for a part-time position on her first day of work. She was out of school and had no other jobs that would conflict with full-time hours. If there was any confusion, a few simple questions would have cleared it up, found the tribunal. Since the manager testified she didn’t ask any, it should have been assumed Maciel wanted the full-time position.
It was likely the salons drafted the termination letter stipulating the part-time hours issue after Maciel raised the issue of discrimination, found the tribunal.
Maciel’s pregnancy was not only one factor but “likely the only factor” in the decision to terminate her employment, which subjected Maciel to discrimination based on her sex, found the tribunal.
The decision shows that if employers try to raise non-discriminatory reasons for termination, those reasons will be subject to a strict burden of proof and a discriminatory reason can’t be a factor at all, said Kate Sellar, a staff lawyer for the Ontario Human Rights Legal Support Centre in Toronto who represented Maciel.
The salons were ordered to pay Maciel $20,719 in lost wages and maternity leave benefits. They were also ordered to pay $15,000 for injury to her dignity, feelings and self-respect that resulted from the discrimination. Finally, the salons were ordered to prepare a written policy on accommodation of pregnant employees and practices for maternity and parental leaves.
The award and the order for the salons to develop a written policy on pregnancy to ensure this situation doesn’t happen again were pleasing, said Sellar, and all employers should have such a policy so they’re not faced with a similar situation.
“Having a human rights policy is an accessible way for employees to learn and know about their rights and shows that an employer respects the requirements of the Human Rights Code,” said Sellar.
Also notable in the decision was the compensation for Maciel’s lost employment insurance benefits, for which she would have qualified had she remained employed with the salons until her due date.
“(The decision) was an acknowledgement of the difficulty for pregnant women to find work,” said Sellar. “It’s not so much about looking at how long she would have worked but also forward-looking on the impact of her maternity-leave eligibility.”
The centre receives 40 calls per week from women who claim discrimination because of pregnancy, most of whom were either fired when they told their employer they were pregnant or while they were on leave, said Sellar. Unless employers can prove a pregnancy had no role at all in a termination, they’ll find themselves in hot water.
“Discrimination like this has a price tag,” said Sellar. “Pregnant women have a role to play in the workplace and efforts to exclude them will not be tolerated and will attract liability.”
