KPA Lawyers – May 4, 2019
First, don’t sign anything. Signing away your rights might result in everything else that we say in this article being completely out of reach for you.
Now that we’ve got that out of the way, what exactly does that law have to say about employers who terminate pregnant employees?
In Ontario, the Human Rights Code states that every person has a right to equal treatment with respect to employment without discrimination because of several personal characteristics, including age, race, religion, sex, etc. Terminating a pregnant employee could (but not always) be considered discrimination with respect to employment on that basis of sex.
Indeed, there can be serious consequences to employers who commit this type of discrimination. In the case of In Marcotte v. Hair Xtacy Academy of Hair Design Inc., 2019 HRTO 348, that Applicant was awarded $13,000.00 as monetary compensation for injury to dignity, feelings and self-respect after her employer was found to have discriminated against her on the basis of a sex, and she was terminated, in part, due to her pregnancy. Other cases have involved even higher awards.
Cases such as the above are heard at the Human Rights Tribunal of Ontario (“HRTO”). People who file cases with the HRTO often incorrectly refer to such proceedings as a human rights “complaint”. The HRTO does not receive “complaints” and people who bring such lawsuits are not “complainants”. The correct term is “Application”, and if an Application is brought in your name, then you are an “Applicant”, and the person or company you sued is called a “Respondent”.
It’s also important to keep in mind that there are many legal requirements that must be met by the Applicant to establish a meritorious case.
The Applicant has the onus (responsibility) of proving that the Respondent violated her Code rights on a “balance of probabilities”. In other words, she must demonstrate that it is more likely than not that she was terminated because of her pregnancy. Clear, convincing and cogent evidence is required. However, the Applicant does not need to prove that her pregnancy was the only factor leading to the termination or discriminatory conduct. Direct evidence of discrimination is also unnecessary, because discrimination will more often be proven by circumstantial evidence and inference. In plain English, this type of discrimination is not always obvious or overt.
Keep in mind that Respondents who establish that the Applicant was terminated for some valid reason, and that the pregnancy was not a factor, may successfully achieve a dismissal of the Application. For example, an employee who is terminated because she had a long history of documented performance issues, or documented neglect of her duties, and coincidentally happens to be pregnant at the time of her termination (especially if the employer didn’t know about the pregnancy) will not likely be able to advance a successful human rights application.