Discrimination Against Mothers - An Update
by Jim Anstey on January 7, 2016
Discrimination in the workplace on the basis of sex or family status has long been a minefield for employers. Pregnant women and new mothers have a right to be free from discriminatory and harassing behavior, to be flexibly accommodated, and are entitled to pregnancy and parental leave. These rights are typically covered by the prohibition on discrimination found in human rights legislation.
Four cases decided in the last year are particularly interesting and are summarized below. Two of the cases arise from non-unionized environments. Nonetheless, the legal principles in relation to discrimination on the basis of sex and family status apply equally in unionized and non-unionized workplaces.
1) A strict enforcement of a provision can lead to constructive discrimination
2015 CanLII 32027 (ON LA)
In 2012, there was an influenza outbreak at Muskoka Algonquin Healthcare (the “Hospital”). When an outbreak occurs at a hospital, the Medical Officer of Health generally recommends that nurses be vaccinated for the flu to control the outbreak. According to the collective agreement governing nurses, when this recommendation is made, nurses have to be vaccinated. If not, they are not entitled to work and not entitled to be paid for missed shifts.
The Hospital had not experienced an influenza outbreak in several years. When flu vaccines were offered in the fall of 2012, one pregnant nurse, Lindsey Marsden, elected not to have the vaccine. She believed she would be able to use Tamiflu if an outbreak occurred, as was recommended in the Hospital’s policies.
When an outbreak did occur in December of 2012, Ms. Marsden was advised that Tamiflu was contraindicated for pregnant women, so she did not take it, and immediately took the flu vaccine. However, since the vaccine takes two weeks to become effective, the Hospital prohibited her from working during that period. Other nurses who had not been vaccinated and were not pregnant took Tamiflu and were allowed to work.
Over the two weeks when Ms. Marsden was not allowed to work, she missed 5 shifts for which she was not paid.
The Ontario Nurses’ Association filed a grievance on her behalf alleging that she suffered discrimination on the basis of sex, contrary to section 5(1) of the Human Rights Code. It argued that the nurse was not permitted to work because pregnant woman are not able to take Tamiflu. The effect of the provision that required she either be vaccinated or take Tamiflu to work was therefore discriminatory based on sex.
The arbitrator found that the employer’s stringent enforcement of the provision was constructive discrimination in violation of the Human Rights Code. As the Hospital had not made her aware of those limitations, it was responsible to pay her for the shifts she was prevented from working due to her pregnancy.
2) Denying birth mothers access to parental benefits available to all other parents in the bargaining unit constitutes discrimination
 3 SCR 492
In 2014, the Supreme Court of Canada affirmed an arbitrator’s decision that the collective agreement of the British Columbia Teachers’ Federation discriminated against birth mothers. The collective agreement provided Supplemental Employment Benefits (SEB) for birth mothers during the two-week waiting period prior to Employment Insurance benefits, plus fifteen weeks of SEB during pregnancy leave. Birth fathers and adoptive parents were entitled to SEB for the two-week waiting period, plus fifteen weeks of parental leave. However, birth mothers were not entitled to this parental leave SEB.
In February 2011, the union filed a grievance alleging that the failure to provide birth mothers with fifteen weeks of SEB for parental leave was discriminatory. It alleged that the provision was contrary to the non-discrimination guarantee in the collective agreement, the provisions of the B.C. Human Rights Code and the guarantees in the Canadian Charter of Rights and Freedoms.
The employer interpreted the provision as a single top-up for employment insurance benefits, limited to a total of 17 weeks of benefits for all classes of parents. However, the union interpreted the provision as having two purposes: 1) to provide benefits to birth mothers when they are recovering from the effects of birth, and 2) to provide benefits to parents while they are establishing a bond with their child.
The arbitrator agreed with the union, and the Supreme Court of Canada affirmed the decision. Birth mothers should not have to forfeit pregnancy leave benefits to be entitled to the parental leave benefits guaranteed to all other parents in the bargaining unit. To do so would be discriminatory.
3) Employers cannot constructively dismiss employees for being pregnant
2014 BCHRT 199 (CanLII)
In 2013, a female bar server filed a complaint under British Columbia’s Human Rights Code, after the owner of the bar advised it would be bad for business to have a visibly pregnant woman working at the bar. The complainant saw her shifts slowly reduced. It was found that this occurred in the hopes the complainant would quit. On several occasions the owner used derogatory language to describe the complainant and made inappropriate comments about her pregnancy to her co-workers.
The Tribunal held that the employer had created an inhospitable and discriminatory work environment. It was found that she was constructively dismissed. She was awarded $2,000 in damages for her lost wages and $7,500 for injury to her dignity, feelings and self-respect.
4) Employers cannot constructively dismiss employees following maternity leaves
2015 CanLII 3452 (ON SCSM)
In this case, the Small Claims Court held that Kelly Bray, a massage therapy instructor, was constructively dismissed. In 2012, she went on maternity leave following the birth of her child. When she returned from her maternity leave in 2013, her employer had substantially reduced her schedule and duties.
When she questioned why she was not returning to a position with similar responsibilities and hours to the position she had held prior to her leave, her employer stated:
“Let’s see how this term goes and see if you find it ok with even being in 4 classes and having to be a mother at the same time. It will be a big adjustment.”
She returned to work at the reduced schedule and in the following semester she was not assigned any classes. As a result, she commenced litigation, claiming discrimination under the Ontario Human Rights Code, on the basis of sex and family status.
The Court found that Ms. Bray was constructively dismissed. Damages were assessed at $17,700 for reasonable notice, $20,000 for injury to her feelings, dignity and self-respect as a result of the College’s breach of Ms. Bray’s human rights, and $5,000 in punitive damages. Given the action was brought in Small Claims Court, the award was capped at $25,000.00.
These cases clearly show that some employers continue to be unaware of their legal obligations to pregnant women and new mothers, or simply do not care. Being mindful of the consequences for breaching human rights and other legislation, as seen in the above-noted cases, may assist in increasing compliance in this area.