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Discriminating Against Pregnant Employees: A Costly Mistake
This blog post will be the first in a 4-part monthly series on pregnancy, maternity leave and discrimination. This is a long-standing issue within the employment (and human rights sphere) and there is a substantial body of jurisprudence relating to it.
Through the prohibited ground of sex, women have the right to be free of discrimination based on pregnancy, as per the Ontario Human Rights Code, R.S.O. 1990 (the “Code”), through both an existing status (pregnant), and the status which typically follows (maternity leave).
Lugonia v. Arista Homes 2014 HRTO 1531
However, despite this protection, some employers continue to terminate pregnant employees, asserting that the pregnancy had nothing to do with the decision to terminate. This is just what happened in Lugonia v. Arista Homes, wherein the Applicant, Amanda Lugonia, was terminated for being pregnant.
In an ironic turn of events, the Applicant, whom had initially been hired on a one-year contract to cover another worker’s pregnancy leave, disclosed to the receptionist on her third shift that she herself was also pregnant. She had discovered the pregnancy just two weeks before her start date, via a home pregnancy test. When she asked the receptionist when she should inform her employer (the “Respondent”) of the pregnancy, the receptionist advised her to wait 3-4 months, stating “you never know what the [Respondent] might do.” On the same day, the Applicant was asked by the Respondent’s CFO to come and finalize her employment agreement. While the Applicant was signing the documents, the Respondent’s legal counsel, whom was present for the signing, asked the Applicant if she had advised anyone that she would not be able to fulfill her one year contract, to which the Applicant said “No.”
Two days later, the Applicant arrived for her shift, only to be approached by the CFO thirty minutes later. She was brought into his office and he advised her that she was being let go, stating that there was no longer a need for a receptionist (the position she had been hired to fill). Despite these assertions, a new receptionist replaced the Applicant shortly after the termination.
The Applicant filed a complaint with the HRTO on the basis that she had been discriminated against and terminated based on her pregnancy. When the matter proceeded before the Tribunal, the Respondent asserted that it had had issues with the Applicant’s attitude, that she was within a probationary period, and that it was not aware that she was pregnant.
Despite these assertions, in conjunction with the testimony of the receptionist who swore she had not advised the Respondent of the Applicant’s pregnancy, the Tribunal found that the Respondent was aware of the Applicant’s pregnancy, and that its decision to terminate the Applicant was a violation of the Code. The Applicant was awarded $15,000.00 for injury to dignity, feelings and self-respect.
Effectively employers must disprove allegations and cannot sit back and claim that they were terminating the employee for other reasons.
Advice for Employees
If you have been discriminated against or terminated due to a pregnancy or maternity leave, you may have a legal remedy available to you. Contact Monkhouse Law today for a free consultation and see how an Employment Lawyer can assist
Advice for Employers
If you are facing issues with an employee whom is pregnant or on a maternity leave, it is important to use caution before jumping to termination, and to ensure that your actions are compliant with human rights legislation. If you are unsure as to what your obligations are, or how to proceed, contact Monkhouse Law today for a free consultation.