Pregnancy Discrimination in Canada: What Employers Should Know

  • Discrimination
Charlie Herrera Vacaflor

Charlie Herrera Vacaflor, Employment Law & HR Content Senior Consultant

(Last updated )

2021 report that surveyed 1,090 Canadian employees who had taken maternity leave found that 33% had experienced discrimination on the basis of pregnancy.

Pregnancy discrimination is a form of discrimination that occurs when an employer treats an employee or job applicant unfairly due to their pregnancy or related medical conditions.

In Canada, it is illegal to discriminate against someone because they are pregnant or have a pregnancy-related medical condition and doing so can have serious consequences.

Beyond legal obligations, discrimination against pregnant employees can create a hostile work environment and negatively impact the health and well-being of the employee. Additionally, pregnancy discrimination can result in high turnover rates, as pregnant employees may feel forced to leave their job due to mistreatment, as well as damage to your business reputation.

It is essential for employers to prevent pregnancy discrimination in the workplace to ensure legal compliance, promote ethical practices, and maintain a positive work environment. This article will outline everything employers need to know about pregnancy discrimination in Canada, including the legal protections in place and best practices for avoiding discrimination.

What constitutes pregnancy discrimination in the workplace?

Pregnancy discrimination is when an employee is treated differently because they are pregnant, recently gave birth, or breastfeeding. A woman is discriminated against in the workplace when she experiences negative treatment that is related to her pregnancy.

Pregnancy discrimination can be an isolated incident or take the form of a company policy that treats pregnant women in the workplace negatively.

What is the law in Canada regarding pregnancy discrimination?

Under Canadian human rights legislation, pregnancy discrimination is considered a form of sex discrimination. This means that it is illegal for an employer to discriminate against an employee or job applicant on the basis of their pregnancy or related medical condition. This includes discrimination in areas such as hiring, firing, promotions, job assignments, and pay.

The Canadian Human Rights Act (CHRA) protects employees and job applicants from discrimination on the grounds of pregnancy and related medical conditions. The CHRA applies to employers who are federally regulated or operate in industries that are subject to federal jurisdiction, such as telecommunications, banking, and interprovincial transportation.

In addition, all provinces and territories have their own human rights legislation that provides protection against pregnancy discrimination. In Ontario, for example, the Ontario Human Rights Code (OHRC) prohibits discrimination based on pregnancy and related medical conditions. The OHRC applies to all employers in Ontario, regardless of size or industry.

What are some common examples of pregnancy discrimination?

Below are common examples of women being discriminated based on pregnancy.

Pregnancy hiring discrimination

Pregnancy hiring discrimination occurs when an employer refuses to hire a job applicant solely because of their pregnancy. For example, a woman who is visibly pregnant goes for an interview and is not hired, despite being the most qualified candidate.

The assumption that an applicant will take time off for maternity leave or that her pregnancy will prevent her from performing job duties (leading to increased costs for your business) are illegal under Canadian human rights laws, which prohibit discrimination on the basis of pregnancy in all aspects of employment.

As an employer, it is illegal to make hiring decisions based on pregnancy or any other prohibited ground, such as race, gender, or religion.

If you engage in pregnancy hiring discrimination, the applicant can file a complaint with the Canadian Human Rights Commission and seek legal remedies, such as compensation for lost wages and damages for injury to dignity and self-respect. To prevent pregnancy hiring discrimination, you should instead always focus on the applicant’s qualifications and ability to perform the job duties, rather than their pregnancy status. It is illegal to ask job applicants if they intend to have children.

Firing an employee for being pregnant

Firing an employee for being pregnant is a form of pregnancy discrimination that is illegal in Canada. It occurs when an employer terminates an employee’s employment solely because of their pregnancy or related medical condition.

For example, an employer fires a pregnant employee, citing concerns about the employee’s ability to perform job duties or productivity, or the cost of providing pregnancy-related accommodations. This type of discrimination is not only illegal but also unfair to the employee who may have been a valuable and dedicated worker.

Denying promotions or being demoted

Denying promotions or demoting an employee because of their pregnancy is another form of pregnancy discrimination that is prohibited under Canadian human rights laws. This includes reducing their scheduled shifts or reducing their pay. Doing so can lead to a poisoned work environment and the affected employee may have a claim for discrimination and constructive dismissal.

This type of discrimination occurs when an employer fails to promote or demotes an employee solely based on their pregnancy or related medical condition. For instance, a pregnant employee who is qualified for a promotion is passed over in favor of a non-pregnant employee, or a pregnant employee is demoted to a lower position because the employer assumes that they will not be able to perform their job duties due to pregnancy.

Not providing reasonable accommodations

An employer has a duty to reasonably accommodate employees in accordance with human rights legislation. In respect to pregnant employees or employees returning to work from maternity leave, an employer has a duty to accommodate.

Some common examples of reasonable accommodations for pregnant workers are:

  • Provide a chair/stool and allow them to sit during their shift.
  • Offer frequent breaks.
  • Adjust their work schedule.
  • Provide a workstation near the restroom.
  • Help to plan maternity leave arrangements.

You should explore all forms of reasonable accommodations with the employee before implementing them to ensure the employee is satisfied.

Denying maternity leave

Under Canadian law, employers are prohibited from denying eligible employees their right to maternity leave. Denying maternity leave can take various forms, such as refusing to grant a request for leave, terminating an employee for taking or planning to take maternity leave, or penalizing an employee in any way for taking maternity leave.

After maternity leave, the worker must be allowed to return to the same (or substantially similar) job with the same benefits, pay and terms of employment as before her leave. Any action that interferes with an employee’s right to take maternity leave or return to work without penalty is a violation of Canadian employment law and can result in serious legal consequences for the employer.

If you pressure an employee to return to work earlier than planned, fail to provide job protection during the leave, or refuse to provide reasonable accommodations during pregnancy or breastfeeding, it could also be considered a denial of maternity leave.

Best practices to prevent pregnancy discrimination

To prevent pregnancy discrimination in firing, employers should treat pregnant employees the same as non-pregnant employees and provide reasonable accommodations, such as modified work duties or schedules, as required by law.

Employers should not make assumptions about a pregnant employee’s ability to work and should evaluate employees based on their performance and qualifications. Employers should also ensure that all employees are aware of their rights and responsibilities regarding pregnancy discrimination and provide training to supervisors and managers on how to prevent and respond to such discrimination.

Employers should take proactive steps to avoid pregnancy discrimination to ensure that their policies and practices are inclusive and non-discriminatory. This includes:

Creating a policy on pregnancy accommodation

Employers should create a policy that outlines how they will accommodate pregnant employees and those with pregnancy-related medical conditions. This policy should include information on flexible work arrangements, modified duties, and leave entitlements.

Providing accommodations

Employers should provide reasonable accommodations to pregnant employees and those with pregnancy-related medical conditions. This may include modifying job duties, providing ergonomic equipment, or allowing flexible work arrangements.

Avoiding assumptions

Employers should avoid making assumptions about an employee’s capabilities or limitations based on their pregnancy or related medical condition. Instead, they should work with the employee to determine their needs and make accommodations accordingly.

Providing education and training

Employers should provide education and training to all employees on pregnancy discrimination and their obligations under human rights legislation. This will help ensure that all employees are aware of their rights and responsibilities.

Taking complaints seriously

Employers should take complaints of pregnancy discrimination seriously and investigate them promptly. They should also take steps to address any discrimination that is found to have occurred.

How to accommodate an employee returning from maternity leave

When an employee is returning from maternity leave, an employer should implement a return-to-work plan for the employee, which should be in writing and agreed upon by both you and the employee.

Returning to work after maternity leave can be a challenging transition for new mothers, and it is important for employers to make accommodations to ease the process. One way to accommodate employees returning from maternity leave is by providing flexible work arrangements. For example, employers can offer part-time or hybrid work-from-home options to allow employees to balance their work and family responsibilities. Employers can also provide on-site childcare services or reimburse employees for childcare expenses, which can help alleviate the financial burden of childcare.

Another way to accommodate an employee returning from maternity leave is to provide additional support and resources to help them transition back to their role. This could include offering mentorship or coaching programs, providing access to professional development opportunities, and arranging for a gradual return-to-work schedule.

Employers can also consider creating a buddy system, where an employee returning from maternity leave is paired with a mentor or colleague who can help them navigate their return to work. Regular check-ins with managers and HR can also help employees feel supported and connected as they transition back to their role. By taking these steps, employers can ensure that employees returning from maternity leave feel valued and supported and are able to successfully integrate back into the workplace.

Do I have to accommodate breastfeeding?

Under the Canadian Human Rights Act , employers are required to accommodate employees who are breastfeeding. Additionally, breastfeeding is explicitly protected under Ontario and British Columbia human rights legislation. It is also protected under family status and sex discrimination grounds in other jurisdictions.

Employers should be supportive, flexible, and creative in developing accommodations for pregnant and breastfeeding employees. You must provide employees with a private and clean space to express milk (not a washroom), as well as a reasonable break time to do so.

You are also required to ensure that employees are not subjected to discrimination or harassment related to breastfeeding and that they are not penalized for taking breaks to express milk. Discuss options with your employees early and openly and be prepared to change arrangements as time goes on.

Do you need advice on pregnancy discrimination?

Pregnancy discrimination is a form of sex discrimination that is illegal under Canadian human rights legislation. By taking proactive steps to prevent discrimination, employers can create a more inclusive and supportive workplace for all employees, including those who are pregnant or have pregnancy-related medical conditions.

As an employer, you must understand your obligations and risks when it comes to accommodating female employees who are on maternity leave or upon their return. It is essential that you work with your employees to develop an action plan to avoid pregnancy discrimination at work.

If you need assistance with human rights issues or want to implement policies to prevent pregnancy discrimination, Peninsula’s services allow you to receive quality advice on any employment issues you may have. Contact us on 1 (833) 247-3652 to speak with one of our experts today.

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