Pregnancy Discrimination

First published on Thursday, Feb 02, 2023

Last updated on Wednesday, May 24, 2023

It’s important for employers to avoid pregnancy discrimination in their place of work.

Employers must be aware of pregnancy discrimination in the workplace, so they can ensure that all employees are treated equally. Failing to do so and they could end up facing costly legal claims.

In this guide, we’ll explain what pregnancy discrimination is, examples of it in the workplace, and how to address and correct it.

What is Pregnancy Discrimination in the Workplace?

Pregnancy discrimination is when an employee is treated differently because they are pregnant, recently gave birth, or are breastfeeding. An employee is discriminated against in the workplace when she they experience negative treatment related to their pregnancy.

Pregnancy discrimination can be an isolated incident or be a result of a company policy that treats pregnant women negatively.

The Law Regarding Pregnancy Discrimination

Pregnancy discrimination in Canada is protected under human rights legislation.

Each province has their own established human rights legislation. For example, human rights protections for provincially regulated workplaces in Ontario are provided under the Ontario Human Rights Code. Other provinces include:

  • Human Rights Code of British Columbia.
  • Alberta Human Rights Act.
  • The Human Rights Code of Manitoba.
  • The Saskatchewan Human Rights Code.
  • New Brunswick Human Rights Act.
  • Nova Scotia Human Rights Act.
  • Newfoundland & Labrador Human Rights Act.

The Canadian Human Rights Act provides human rights protection from discrimination for federally regulated employees. Some examples of federally regulated workplaces are telecommunications, interprovincial transportation, and broadcasting.

Common Examples of Pregnancy Discrimination

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

Pregnancy hiring discrimination

Refusing to hire a candidate because they are pregnant or wish to be pregnant in the future is considered pregnancy hiring discrimination.

Applicants to a job are protected by human rights legislation in the same way as existing employees. Employers cannot refuse to hire an employee simply because they are pregnant or wish to be pregnant in the future.

It may even be considered illegal to ask job applicants if they intend to have children.

Firing an Employee for being Pregnant

If an employee is fired or terminated without cause because they are pregnant, the employee will have a claim for discrimination.

Employers have the right to terminate employees for numerous other reasons. These include poor performance or willful misconduct. However, an employer cannot terminate an employee for being pregnant without legal repercussions.

Denying Promotions or Being Demoted

An employer cannot deny promoting or demote an employee because they are pregnant. This includes reducing their scheduled shifts or reducing their pay.

This can lead to a toxic work environment and an employee may have a claim for discrimination and constructive dismissal.

Not Providing Reasonable Accommodations

An employer has a duty to reasonably accommodate employees in accordance with human rights legislation. If a pregnant employee or an employee returning from maternity leaves requests a reasonable accommodation, it’s an employer’s duty to fulfil this.

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 accommodations with the employee before implementing them to ensure they are satisfactory.

Denying Maternity Leave

According to employment standards legislation, employees have the right to maternity leave. You cannot deny a request for maternity leave when an employee is pregnant or about to give birth.

After maternity leave, the worker must be allowed to return to the same (or substantially similar) job. Any new role must come with the same benefits, pay and terms of employment as before their leave.

Accommodating 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. This can include modifying work hours or allowing work from home. Any return-to-work plans should be in writing and agreed upon by both you and the employee.

You should also keep lines of communication between you and the employee open during maternity leave. This can help ensure that the employee is aware of any organizational or operational changes to your business. When communicating with your employee, it is best to discuss the best form of communication such as telephone or email.

Do I have to Accommodate Breastfeeding?

If an employer fails to reasonably accommodate an employee who is breastfeeding, they may be liable for discrimination under human rights legislation. 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. Some accommodations may include:

  • Flexible work hours.
  • Working from home.
  • Modified job duties.
  • Longer or extra breaks to nurse or pump.

Employers are also obligated to provide a private and sanitary area (not a washroom) for employees to pump or breastfeed upon request. Employers should discuss options with their employees early and openly. They should also be prepared to change arrangements as time goes on.

Steps Employers Can Take to Prevent Pregnancy Discrimination

Employers should train and educate themselves and their managers about pregnancy discrimination in the workplace. Here are some tips you and your managers may take to prevent pregnancy discrimination:

  • Establish a workplace culture where discrimination does not take place.
  • Help plan maternity leave arrangements including transitioning employees in and out of roles.
  • Keep dialogue open with an employee about the kind of support they might need during their pregnancy.
  • Train managers to be more family supportive and less biased against expectant mothers.

Get Advice on Pregnancy Discrimination with BrightHR

As an employer, you must understand your obligations and risks when it comes to pregnancy discrimination. It’s important that you accommodate employees who are on maternity leave or returning from it.

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, our BrightAdvice service allows you to receive quality advice on any employment issues you may have.

Contact us on 18882204924 or book a demo today.

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