Too-tight shirt leads to pregnant employee’s firing

Employee’s termination as a result of refusal to wear new form-fitting uniform was discrimination: Tribunal

An Ontario bar discriminated against a pregnant employee when she balked at wearing a new tight uniform, the Ontario Human Rights Tribunal has ruled.

In McKenna v. Local Heroes Stittsville, the tribunal found Local Heroes, which operated as a sports bar in Stittsville, Ont., discriminated against server Ashley McKenna by refusing to provide her with work and eventually terminating her employment on the basis of her sex (pregnancy).

McKenna began working for the bar in March 2011 as a part-time server. In July 2011 she became pregnant. Four months into her pregnancy, in November, Local Heroes introduced a new dress code for the staff that featured more form-fitting shirts.

 McKenna requested that she not have to wear the new uniform as it highlighted “her already visible pregnancy.” In response, the bar said she would not have to wear the new uniform for future shifts. However, McKenna worked two further shifts that had been scheduled prior to the discussion about the new uniform, and thereafter was not provided with any further shifts. McKenna then received a Record of Employment indicating she had resigned from her employment.

The Human Rights Tribunal of Ontario found that, “the new uniform that staff were expected to wear was made to draw attention to the shape of the body” and therefore, “the fact that (McKenna) was pregnant, and visibly so, was regarded by the respondents as inconsistent with their branding efforts and that her presence at work was an inconvenience that could be dispensed with by not offering her any more shifts.” 

As a result, the tribunal found “it is more likely than not that the applicant’s pregnancy was the only reason for ending her employment,” and awarded damages.

Impact of decision on employers

As the above decision highlights, employers are not permitted to terminate an employee’s employment on the basis of any of the protected grounds listed in the Ontario Human Rights Code — race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. Employers should ensure they adhere to such requirements, failing which they may be subject to the various damages the tribunal has the authority to award.

Impact of decision on employees

Similarly, employees should ensure their human rights are protected in the workplace and familiarize themselves with what is and is not permitted by employers under applicable human rights legislation.

For more information see:

McKenna v. Local Heroes Stittsville, 2013 HRTO 1117 (Ont. Human Rights Trib.).

Ronald S. Minken is a senior lawyer and mediator with Minken Employment Lawyers, an employment law boutique located in Markham, Ont. He can be reached at Ron gratefully acknowledges Sara Kauder and Kyle Burgis for their assistance in preparation of this article.

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