Refusing pregnant applicant for short-term contract

Balance between human rights and worker's ability to do job

Brian Johnston

Question: Can an employee refuse to hire a pregnant applicant for a short-term contract position because it is known right off the bat the applicant would not be able to fulfill the contract?

Answer: The answer is yes, the employer can refuse to hire a pregnant applicant for a short-term contract position when it is known she will not be able to fulfill the contract due to giving birth.

Obviously, in making that decision, the employer is differentiating in relation to employment based upon a protected characteristic under human rights legislation — namely, the fact that the employee is pregnant. However, the refusal to hire is because the employee cannot do the job. That brings into play the duty to accommodate, which expects that an employer accommodate to the point of undue hardship in relation to an otherwise neutral workplace rule that would have a disproportionate negative impact on an employee because of her protected characteristic (in this instance, pregnancy).

In such circumstances, a human rights tribunal should be satisfied that it would be undue hardship for an employer to hire someone who cannot fulfill any part of the job, despite the fact that the refusal to hire was based upon a protected characteristic.

Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or [email protected]

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