This case illustrates that even predominately female workplaces are insensitive to pregnancy, maternity and human rights. In the second installment of our four-part series on human rights issues related to pregnancy and maternity leave, we turn to the decision of the Human Rights Tribunal of Ontario in Maciel v. Fashion Coiffures Ltd. et al 2009 HRTO 1804 (CanLII).
In Maciel, the Applicant, who was hired as a receptionist in two salons operated by the Respondent, was fired on her first day of work. The Applicant was fired following her disclosure that she was pregnant to her manager. She subsequently filed a complaint with the Human Rights Tribunal of Ontario, for discrimination on the basis of sex.
Points of Interest
The decision was an interesting one for two reasons:
1) The brief nature of the employment relationship; and,
2) The nature of the Respondent’s business and its clientele.
The Applicant, Maciel, had recently graduated from college and had gone to the Respondents for a full-time receptionist position at their hair salons. When Maciel interviewed for the position, she was four months pregnant but did not mention this during the interview. On her first day of work, Maciel experienced morning sickness and quickly left the company of the woman training her to use the women’s washroom. When she returned, the trainer asked if she was ok, to which she responded that the sudden illness was due to her pregnancy. The trainer told Maciel to advise her manager, Ms. Conforti, immediately, on the basis that another pregnant employee who had not disclosed her pregnancy to the manager had been a “problem” for the Respondents. Maciel immediately scheduled a meeting with the manager and told her that she was pregnant. Conforti was initially happy for Maciel but her attitude changed as she expressed concerns regarding Maciel’s availability. She told Maciel that head office would be advised of this and that they would be in touch.
Following the end of this conversation, Maciel returned to work, but received a call from Conforti fifteen minutes later, asking her to leave work until head office had reached a decision. Maciel’s trainer was nearby when the phone call finished and said something along the lines of “I was afraid that would happen” to Maciel. Not surprisingly, Conforti followed up with Maciel the following day and advised her that she would no longer be working as the Respondents’ receptionist due to issues with her availability. Maciel, aware of her rights, informed Conforti that it was illegal to terminate an employee for being pregnant. Conforti replied by re-asserting that it was an issue with her availability.
Following this termination, the Respondents began to “paper” themselves – or try to- in order to combat legal action. Maciel requested a copy of her employment contract; she was told that it had been destroyed. The Respondents provided Maciel with an employment letter, but it was not helpful in terms of re-employment: the letter stated that Maciel had asked for a non-existent position, which is why she was let go.
Findings of the Tribunal
Despite the Respondents’ assertions that they had not discriminated against the Applicant, that it was purely an availability issue, and they had been accommodating to pregnant or maternity leave employees previously, the Tribunal found that the Applicant had made out a prima facie case of discrimination on the basis of sex.
Additionally, the Tribunal did not consider the Applicant’s short tenure with the Respondents to have “limited” the discrimination’s effects. It held that the Respondents’ discriminatory actions had far-reaching effects, not only on her emotional state (she suffered from depression) but also on her financial state (the quick dismissal and her pregnancy made re-employment practically impossible).
The Applicant was awarded $9,060.00 for loss of income, $11,659.00 as compensation for her maternity leave benefits, and $15,000.00 for injury to dignity, feelings and self-respect.
Principles of the Decision
Maciel demonstrates that even predominately female workplaces can be susceptible to human rights issues relating to pregnancy and maternity leave. The conduct of the Respondents in Maciel is interesting not only because of the characteristic of the company’s workforce but because of the expansive public relations issues the company would have ultimately faced as a result of the decision at the Tribunal. Maciel shows that the Tribunal will not hesitate to make awards for human rights damages, benefits and lost wages even wherein an Applicant’s employment is short and the timeframe for discrimination limited.
Advice for Employers
A limited tenure does not give employers carte blanche to terminate without repercussions. If you are considering terminating an employee who is pregnant or on maternity leave, regardless of tenure, it is important that you first speak with an employment lawyer, as such a decision will almost always be a violation of the Ontario Human Rights Code. If you have any questions about this area of law, contact Monkhouse Law today for a free consultation.
Advice for Employees
If you have been terminated for being pregnant or while on maternity leave, you may have a legal remedy available to you. As the decision in Maciel v. Fashion Coiffures illustrates, your tenure or capacity (part-time or full-time) does not necessarily mean that your entitlements upon termination will be adversely affected. If you have any questions, contact Monkhouse Law today for a free consultation.
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