How not to treat a pregnant employee: Lessons from a recent case

Exclusive to Canadian HR Reporter from Rudner Law.

In a recent Alberta decision, the Human Rights Tribunal held that an employee who had been discriminated against by her employer on the protected ground of gender (pregnancy) was entitled to $25,000 in general damages along with around $9,000 of lost wages over a 15-week period.

The complainant worked part time as a server in the respondent’s pizzeria between July 2013 and May 2014. The complainant alleged that after disclosing her pregnancy to her employer in mid-March 2014, she experienced adverse treatment including reduced hours of work, changes in her shifts from evening to day time, and then the termination of her employment.

She alleged that her pregnancy was a factor in the way in which the employer treated her.

Originally, the Tribunal heard the employee’s complaint and issued a decision in 2020, awarding $23,000 in general damages plus lost wages of around $10,000. The Court of King’s Bench of Alberta overturned the original decision and sent the complaint back to the Tribunal for a new hearing.

This latest decision relates to the entirely new hearing following the court’s judicial review decision.

Analysis

The law is clear that employees are protected from adverse treatment based, at least in part, on any of the protected grounds under the applicable human rights legislation. Gender is one of the protected grounds, and pregnancy is deemed to be related to gender.

Here, the Tribunal found that the complainant established prima facie discrimination, since the employer reduced her hours and terminated her employment based on her pregnancy. To be clear, pregnancy only needed to be at least in part related to the decision to reduce her hours and/or to dismiss her, in order to be discriminatory. There was sufficient evidence to prove this was the case.

The respondent employer was unable to show that its conduct was reasonable and justifiable in the circumstances (e.g. that it reasonably accommodated the complainant to the point of undue hardship). In fact, the respondent did not even put forward any evidence that it accommodated her or that accommodating her pregnancy would cause undue hardship.

The Tribunal then turned its mind to the damages that the complainant would be entitled to. The Tribunal’s analysis of the general damages to be awarded to her for pain and suffering is interesting, and serves as a cautionary tale for employers. The Tribunal found that this was an “objectively serious breach” of the Alberta Human Rights Act:

• “Although it involved a relatively short period of employment, it also involved loss of employment. Loss of employment on its own is serious. … Loss of employment as a result of discrimination is a serious affront to dignity.”
• “The situation was made more serious because the complainant was pregnant at the time of her termination. She was at a vulnerable time, entering her third trimester. The sad reality is that pregnant job seekers often have difficulty securing employment in the late months of pregnancy due to prejudice surrounding their upcoming departure for medical and parental leave.”
• “Here, the discrimination related to both reduced shifts and hours and then termination of employment. It was objectively serious.”

The Tribunal also found the impact on the complainant was “significant”:

• “She lost relationships with her coworkers, doubted her abilities after years working in the industry, worried about rumors spreading in the restaurant community, lost trust in employers generally and particularly male employers, and the discrimination even affected her physically. The complainant testified about having breakdowns while she had a brand new baby, and how the discrimination limited the joy she should have had as a new mother.”

Further, the Tribunal commented that the respondent’s post-termination conduct also “exacerbated the impact on the complainant”:

• “The respondent was over two weeks’ late providing the complainant with her final wages and holiday pay, requiring the complainant to repeatedly follow up and making the complainant worry if she would get paid at all.
• The respondent failed to submit a Record of Employment (ROE) to Service Canada, which resulted in delays in the complainant receiving parental leave benefits.
• The respondent raised unfounded allegations of performance and attitude concerns that increased the emotional impact on the complainant.”

The Tribunal awarded $25,000 in general damages to compensate the complainant for injury to dignity. The Tribunal further awarded $9,223.10 in lost income.

Key takeaways

Employers should be very careful when making substantial changes to the terms of employment and/or imposing disciplinary action, including dismissal, against pregnant employees (or employees who otherwise could allege discrimination based on a protected ground under applicable human rights legislation).

Employers would be wise to clearly document the reasons for such decisions so that it can be used as supporting evidence in case there is an allegation later on. Even if gender (pregnancy) or another protected ground is in part related to the adverse treatment, it will constitute discrimination.

Nadia Zaman is a senior associate at Rudner Law in Toronto. She can be reached at (416) 864-8500 or [email protected].