Pregnancy quips perpetuate gender discrimination

Yes, it’s 2017, but gender discrimination continues to persist in many workplaces. Discrimination in employment on the basis of gender is contrary to human rights legislation and leaves an employer vulnerable to liability for its wrongful conduct. This was affirmed by a recent decision of the Nova Scotia Court of Appeal — Nova Scotia Liquor Corporation v. Nova Scotia (Board of Inquiry).

In 2009, Pearl Kelly filed a human rights complaint against her employer, the Nova Scotia Liquor Corporation (NSLC), wherein she alleged that she had been discriminated against on the basis of gender and mental disability.

Kelly began her employment with the NSLC in 1994 as a casual store clerk. Over the years, she received a number of promotions and by 2003, she held the position of Class 4 store manager. She was the first female employee to be promoted to this level. However, Kelly’s success within the organization was not without its difficulties. During the course of her employment, Kelly gave birth to three children and, subsequently, took three maternity leaves. On more than one occasion, her promotions coincided temporally with her pregnancy or maternity leave. Employees within the organization attributed her promotions to her pregnancies, insinuating that Kelly received her promotions because she was pregnant and not because of her abilities. These comments were known to, and tolerated by, the NSLC. Furthermore, Kelly was referred to as “Pregnant Pearl in Pictou” by management of the NSLC, a nickname that Kelly found offensive and derogatory. Additionally, during performance appraisals, Kelly was subject to a more stringent standard than that applied to her male counterparts. For example, Kelly receive the same performance appraisal rating as one of her male counterparts despite the fact that her male counterpart had significantly more serious performance issues than Kelly. On May 28, 2008, Kelly went on sick leave. She received disciplinary letters from the NSLC while she was on sick leave. The culmination of this conduct lead to Kelly filing a human rights complaint against the NSLC.

The complaint proceeded to a hearing before a Board of Inquiry and, six years after the complaint was filed, the Board of Inquiry rendered a decision. The Board of Inquiry concluded that the NSLC had discriminated against Kelly on the basis of gender and mental disability. NSLC appealed this decision. The appeal was partially successful. The Court of Appeal found that Kelly had been the victim of gender discrimination in the workplace. However, it concluded that although there was clear evidence that Kelly suffered from a mental disability, the evidence was insufficient to support a finding of discrimination on the basis of mental disability.

What this means for employers

Discrimination of the basis of gender, like other forms of discrimination, can arise in a workplace culture when such behaviour is condoned by the employer. Employers have a legal obligation to make reasonable efforts to provide employees with a workplace that is free from discrimination and harassment.  Employers can take the following preventative steps to ensure that acts of discrimination and harassment are not tolerated in the workplace:

• Introduce and implement a policy which prohibits discrimination and harassment in the workplace
• Provide employees with training on what constitutes discrimination and harassment
• Address workplace culture issues that may contribute to and/or cause discrimination or harassment
• Respond appropriately to any complaints of discrimination or harassment.

Employers risk being found liable for harm suffered by employees who are subjected to discrimination and harassment in the workplace.

For more information see:

• Nova Scotia Liquor Corp. v. Nova Scotia (Board of Inquiry), 2016 CarswellNS 307 (N.S. C.A.).

Jessica Bungay is an associate with Cox and Palmer in Fredericton, N.B., focusing on employment, labour and human rights law. She can be reached at (506) 453-9612 or [email protected].