The Impact of Pregnancy or Maternity Leave on Employee Rights under Ontario Employment Law
Even before the COVID-19 pandemic – which itself brought harmful effects on working women in the labour market – there was perhaps no issue more stressful and daunting than being fired while on a maternity leave. Despite progress on achieving more gender equality in the workplace, nearly 25% of the discrimination complaints under the Human Rights Code are based on sex or pregnancy. For context, these are the primary grounds under which female employees lodge claims of workplace discrimination based on pregnancy.
It should therefore not be all that much of a surprise to find many employers attempting to use the COVID-19 pandemic as a convenient excuse to layoff their most vulnerable workers, oftentimes older employees, employees with an illness or disability, and pregnant employees. In fact, I have assisted many female employees in Ontario who were suddenly laid off soon after announcing their pregnancy, while at other times fired while on a maternity leave and when they were planning their return to work.
How Can Discrimination Relate to an Employee’s Pregnancy or Being Fired While on Maternity Leave?
To prove discrimination as an employee, you must show that there is a connection between negative treatment you experienced at work and one of the personal characteristics (or prohibited grounds of discrimination) listed in the the Human Rights Code. When it comes to female employees who are pregnant or on pregnancy leave, this often falls under the category of “sex.” In that case, even if the discriminatory ground (e.g., your pregnancy) is only part of the reason (as opposed to the main reason) for the negative treatment, that is typically enough to prove discrimination under the Human Rights Code.
Examples of Pregnancy-Related Discrimination in the Workplace
Here are some examples of pregnancy discrimination in the workplace an employment lawyer typically encounters when helping employees:
- refusing to hire you because you are pregnant (or are planning to have children)
- deciding not to offer you a promotion because of your pregnancy or upcoming plans to go on maternity leave
- firing you because of the fact that you are pregnant (or planning to go on maternity leave)
- failing or refusing to provide workplace accommodations
A wrongful termination that coincides with an employee’s pregnancy (e.g., fired while on maternity leave) is more likely to be found to be linked to the pregnancy if an employer does not have enough evidence to show that the employee had previously performance issues that were documented and for which the employee warned about potential termination of employment.
Situations Where an Employee Firing an Employee During Pregnancy Leave is Not Discrimination
That said, it is important to note that not every case of an employer laying off or terminating a female employee during pregnancy or maternity constitutes an unlawful termination or discrimination. In other words, a female employee may be treated negatively by their manager or owner at work for reasons unrelated to a Human Rights Code-protected personal characteristic, such as normal workplace disagreements or friction. In the context of workplace discrimination, the test is whether there is a connection (link) between the employee’s protected characteristic under the Human Rights Code and negative treatment that they have experienced.
Ontario law allows employers to fire an employee provided doing so is “unrelated” to pregnancy or maternity leave. In that case, an employer must be able to prove that there are other bona fide (legitimate) reasons for dismissing an employee that are completely separate and unconnected to the employee’s pregnancy or leave of absence, such as company downsizing, business closures, larger temporary layoffs. In that case, an employer may be able to get away with no having to reinstate the employee back to their old job, and can proceed with firing an employee without it being deemed a wrongful dismissal.
In practice, this means that employers are still allowed to discipline or dismiss an employee who is pregnant – as long as it does so for legitimate business reasons and the decision is in no way related to the fact that the woman is, was, or is planning to become pregnant. Therefore, to properly defend themselves with the help of an employment lawyer, businesses must have in place adequate human resources practices, such as documenting performance concerns and engaging in progressive performance management. After all, it does not take much for a skilled employment lawyer (or the courts) to ask the simple question: if an employee had previous performance issues, then why did you wait until after they announced their pregnancy or took a maternity leave to fire them? As an employment lawyer, I often this is used as an unfair and lazy excuse by an employer to provide a reduced severance package (or avoid providing a severance package altogether).
Employer’s Obligation to Restore Employee to the Same Position as Before Maternity Leave
In my experience as an employment lawyer in Toronto, workplace discrimination issues surface when an employee tries to return to work. The fact that an employee is pregnant or requires accommodation in the form of a maternity leave should not make them an inconvenience or put them at a disadvantage in the eyes the employer. This is why Ontario employment lawyer permits employees to continue working as long as they are able to perform their jobs. If an employee has been unable to work while on a maternity leave, and then wishes to return to work, the employer may not prevent her return.
As noted above, an employer does not always have to restore you to the same position that you had prior to your maternity leave, or even to a comparable position. But should you do if you suspect that your employer may be trying to circumvent the law?
Employment Lawyers Can Help Employees Facing Discrimination due to Pregnancy Leave or Maternity Leave
If you feel you are facing discrimination in the workplace because of your pregnancy, it is crucial to consult an experienced employment lawyer to go over your legal rights and options. For instance, if your employer refuses to reinstate you following a pregnancy leave or parental leave, an employment lawyer will help you review the circumstances by closely examining the reasons given by your employer (as well as the reasons your employer failed to mention).
Given how often these discriminatory scenarios arise, the courts and human rights tribunals across the country are naturally skeptical of employers who claim that an employee’s position is no longer available after a pregnancy leave or maternity leave. As a result, employers are called to demonstrate that an employee’s role or job responsibilities truly no longer exist, or that the reasons for the wrongful dismissal are honestly unrelated to the leave of absence. For example, this may arise where there is a larger corporate restructuring that results in your entire department closing down, or where there is genuinely no need to continue your role. Unfortunately, what I often see as an employment lawyer is an employer alleging the job was “eliminated,” but has actually assigned essentially the same role (or job responsibilities) to other employees.
With the help of an experienced Ontario employment lawyer, an employee who proves they were discriminated against by their employer may be awarded various remedies under the Human Rights Code, including:
- reinstatement (with back pay from the wrongful termination date)
- severance package compensation (or lost wages from the wrongful termination date until the date they find another job)
- damages for injury to dignity, feelings and self-respect (discrimination pay), in addition to a financial severance package that can be enlarged because of the difficulties in finding a new job
Contact Bune Law, Toronto Employment Lawyer
Human rights and employment law in Ontario prohibit employment termination in circumstances where pregnancy or maternity leave play a role in the dismissal. In fact, the law generally requires employers to reinstate employees to their previous jobs (or a “comparable role” if their original position no longer exists) once they return from a leave of absence, including a pregnancy leave or maternity leave.
If you are an employee who recently lost your job after announcing your pregnancy, or were fired while on maternity leave, it is important to speak with an experienced employment lawyer to help you understand your rights and best options for moving forward.
At Bune Law, an experienced employment lawyer in Toronto will provide you with expert legal advice on a wide variety of employment matters, including what steps to take if your employment was terminated while on maternity leave. The experienced employment lawyer at Bune Law takes pride in a reputation for excellence in client service. Call 647-822-5492 for an employment lawyer consultation.
If you are an employer, you should speak with an employment lawyer to discuss your options before making the decision to terminate employment and obtain the proper severance package documentation for your employee to avoid a discrimination claim.
No matter which side you happen to land on, Bune Law, a leading employment lawyer in Toronto, is ready to assist with your case. Don’t hesitate to reach out to Bune Law at 647-822-5492.
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