Some people are surprised to learn that it was not until 1989 that the Supreme Court of Canada recognized that discrimination based on pregnancy was a form of gender or sex discrimination (see: Brooks v Canada Safeway,  1 SCR 1219). Shortly after, several jurisdictions amended their human rights legislation to indicate that gender discrimination included discrimination on the basis of pregnancy. So, in Alberta, for example, human rights law does not permit discrimination on the basis of pregnancy in employment, tenancy, services and accommodation customarily available to the public, notices, and trade unions and professional organizations. Of course, there may be some circumstances where an employer could defend its actions by saying that not being pregnant is a good faith occupational requirement. In that case, the employer would have to show that the woman’s pregnancy could not be accommodated to the point of undue hardship. For example, if a woman’s occupation involved working with chemicals that could endanger herself and the foetus, the employer would have to show that it could not move the pregnant employee to a safer job without experiencing undue hardship (e.g., excessive cost to the workplace).
Despite this law prohibiting discrimination on the basis of pregnancy, RMCLA has been receiving anecdotal evidence (information from individual women) that they have been discriminated against for being pregnant. In particular, they are reporting that they are being denied the opportunity to return to their employment after taking maternity leave. Often, upon their request to return, companies are offering financial settlements, viewing the payoffs as a “cost of doing business”. That is, the company recognizes that they may be violating human rights law but view this practice as a cheaper way of dealing with the circumstance that they don’t want the person to return from maternity leave to her previous position.
The Alberta Human Rights Commission (Commission) reports annually about the grounds and areas of complaints that they take on board. For many years, gender and employment were the largest ground and area of complaint. A few years ago, physical disability replaced gender as the number one ground for complaint, but continues to be followed closely by gender. At a recent meeting with the Commission, it was reported that for the fiscal year of April 2010 to March 2011, 212 complaints received by the Commission were based on gender discrimination and half of those (108) were based on pregnancy. In total, about 15 percent of the overall complaints they investigated (723) involved pregnancy. Thus, despite the existence of a law prohibiting discrimination on the basis of pregnancy for about 20 years in Alberta, it is still a problem.
Why are employers willing to violate the law? Perhaps because they know that the remedies available under human rights law are quite mild. Generally, the remedies provided are remedial. They are not intended to punish companies, but to educate them. Remedies may include paying lost wages, providing an apology, reinstating a person, implementing a harassment and discrimination policy and paying the complainant modest monies for hurt feelings. This is not to say that dealing with a human rights complaint is not trying and perhaps embarrassing for some companies. However, the names of the parties are kept completely confidential throughout most of the human rights process, so the embarrassment factor is perhaps not that great. Another possibility is that employers without human resources departments or legal departments are not aware of their obligations under human rights law. However, many of the anecdotes we have received are not coming from employees based in small employers.
As noted above, perhaps employers consider it easier to pay off the employee (and request that as part of the settlement, she not make a complaint to the human rights commission) than to deal with the return of someone after a year has passed by and another person has been hired or given the pregnant woman’s duties in the meantime.
Thus, the larger question that arises from these anecdotes and statistics is whether the human rights legislation is the correct place to deal with pregnancy discrimination in the workplace (on an individual complaints basis) or whether a larger more systemic solution should be in place to address this and other family related issues.
RMCLA would be very interested in hearing from people who have experienced pregnancy related discrimination. We undertake to keep all information provided confidential and private. Please contact us at: email@example.com.
Author: Linda McKay-Panos, Board Member, Rocky Mountain Civil Liberties Association