Dismissal of pregnant employee for lying not discriminatory: Tribunal

Law firm dismissed pregnant employee for dishonesty after she lied about how and when she found out she was pregnant

The British Columbia Human Rights Tribunal has dismissed the discrimination complaint of an employee who was fired for telling a false story about when she found out she was pregnant.

Erica Opp was hired on Nov. 17, 2014, by Vancouver law firm Mackoff and Company (MLC) to be a legal administrative assistant.

On Opp’s first day of work at the firm, an associate lawyer saw an individual whom he later learned was Opp enter the elevator he was in. She spoke to another man in the elevator and told him it was her first day at her new job with MLC. She also whispered to the man that she had just found out she was pregnant. When the man asked her if she was going to inform MLC, she responded, “No, I don’t know.” She and the man then agreed she should work for MLC for a while before announcing her pregnancy.

Later that week, on Nov. 18 or 19, Opp told another administrative assistant at MLC that she had just learned she was pregnant and was worried because she had just started her employment with the firm. She also told the co-worker she had informed Leslie Mackoff, the senior partner of MLC, and wondered if it would affect her employment. The co-worker doubted it and said MLC would probably hire a temporary employee when she went on leave.

On Nov. 27, Opp went to lunch with three other MLC employees and told them she had just discovered she was pregnant a few days earlier. One of the employees, a paralegal, told Opp she should inform the senior paralegal who was also the manager of support staff at her earliest convenience. The paralegal later told the manager herself.

Opp eventually told the senior paralegal about her pregnancy on Dec. 12, saying that she had gone to the hospital during a three-day absence from the office on Dec. 1 to 3 and found out then she was pregnant. She expressed concern about how the MLC partners would react to the news but the senior paralegal told her “that is not how this firm works,” they had at least five women take maternity leave and all five were still employees. Opp said she would inform the partners shortly.

Employee’s story revealed to be false

A couple of days later, the senior paralegal learned that Opp had told another administrative assistant of her pregnancy back on her second day of employment and also spoke to the associate lawyer who had heard Opp discuss her pregnancy on her first day of work a month earlier.

Around the same time, Opp met with Leslie Mackoff, the senior partner, and told him that when she had been ill on Dec. 1 to 3 she had learned she was pregnant. Mackoff felt something was amiss about her story but he congratulated her and returned to work.

The following day, Mackoff mentioned his conversation with Opp to the senior paralegal, who told him the story wasn’t true. The senior paralegal told Mackoff of Opp’s revelations to her co-workers in November, including in the elevator on her first day of work and her stated intention to not inform the firm until later.

Mackoff spoke with the other employees with whom Opp had spoken regarding her pregnancy and confirmed she had known she was pregnant on her first day of work. Her fabricated story about finding out she was pregnant in early December made him concerned over whether she would act honestly in other situations, such as if she made a mistake in a legal file and would try to cover it up or swear a false affidavit.

Mackoff and the senior paralegal decided to terminate Opp’s employment on Dec. 22, 2014. Mackoff made it clear to Opp that her termination “had nothing to do with pregnancy and everything with her willingness to concoct a falsehood and how that negatively impacted my ability to trust her judgment and her honesty.” Opp indicated she understood the reason for termination, but later filed a complaint against MLC for discrimination based on physical disability, sex, and family status.

MLC requested Opp’s medical records, which showed she tested positive for pregnancy on Nov. 3, 2014, and did not visit the hospital during the period of Dec. 1 to 3. It then applied to dismiss the complaint on the basis it didn’t have grounds to succeed.

Opp confirmed she didn’t visit the hospital, but said she didn’t recall referring to her sick time on those days in her conversation with Mackoff. She also said she had been assured by her co-worker that her employment was secure, so she wouldn’t have had any reason to make up a story about when she learned she was pregnant. Her reasoning for not announcing her pregnancy to her employer until mid-December was that she wanted to wait until she was confident she wouldn’t have a miscarriage, as she had suffered two previous miscarriages.

The tribunal found that Mackoff had no reason to fabricate a story that Opp told him she found out she was pregnant while off sick on Dec. 1 to 3. Mackoff had sent a letter to the senior paralegal following Opp’s termination confirming the circumstances and his actions and accounts were consistent. Opp couldn’t explain why Mackoff would make such a story up, said the tribunal.

“In suggesting, rather than plainly stating, that the aforesaid conversation did not take place, Ms. Opp is essentially suggesting that either Mr. Mackoff was mistaken or that he deliberately fabricated the aforesaid conversation in order that he could terminate her employment because she was pregnant,” said the tribunal. “It is doubtful that Mr. Mackoff would be mistaken respecting the content of the Dec. 12 conversation when he reiterated it to the senior paralegal on Dec. 16, only four days later.”

The tribunal noted that there were at least five MLC employees who had taken maternity leave and were still employees of the firm, giving Opp no reason to fabricate a story, as she did. It disagreed with Opp’s claim that the short period of time from when she revealed her pregnancy and her termination meant that the pregnancy was a factor in the termination.

“It seems likely to me that the tribunal would accept at a hearing of this matter that MLC has provided a reasonable, non-discriminatory explanation for the decision to terminate Ms. Opp’s employment,” said the tribunal in dismissing Opp’s complaint.

For more information see:

Opp v. Mackoff Law Corporation, 2016 CarswellBC 168 (B.C. Human Rights Trib.).

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