September 25, 2015 By: Jim Anstey
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Discrimination against pregnant women and new mothers in the workplace has long been a minefield for employers. Given this is a perennial problem, and lawyers are regularly retained to advise and represent in these cases, we have carried out a review of decisions rendered in the past year and summarized them in this article. In some cases, the employer’s breach of a woman’s human rights is obvious; other cases are less clear. They are all quite interesting.

Despite being afforded equal rights and opportunities through human rights, labour and employment legislation, discrimination against pregnant women and new mothers continues. As such, employers and unions need to carefully scrutinize their policies and actions to ensure discrimination does not occur.

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 on the basis of sex or family status as found in human rights legislation. When discrimination occurs, employers and unions share responsibility for finding appropriate remedies and, in some cases, for accommodating the employee.

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

Muskoka Algonquin Healthcare v Ontario Nurses’ Association

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 the practice in the Hospital and recommended in the Hospital’s policies. At that time she did not know that Tamiflu was contraindicated for pregnant women, and the Hospital’s policies did not provide such important information.

When an outbreak occurred in December of 2012, Ms. Marsden spoke to her pharmacist about taking Tamiflu. She was advised that Tamiflu was contraindicated for pregnant women so she did not take it. Upon learning she could not take Tamiflu, she 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.

The employee offered to wear a surgical mask during the two-week period in question, but her employer rejected this option. Over the two weeks when she was not allowed to work, she missed 5 shifts for which she was not paid.

The Ontario Nurses’ Association filed a grievance on behalf of Ms. Marsden 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 union sought payment for the 5 days of unpaid work the nurse missed due to the strict enforcement of the provision.

The arbitrator agreed with the Hospital that a mask was less effective than a vaccine and was not an optimal solution to preventing the spread of the flu. However, the arbitrator took note that the ward of the Hospital on which the nurse worked was not experiencing an influenza outbreak; it was contained to other wings.

The arbitrator found that the employer’s stringent enforcement of the provision was constructive discrimination in violation of the Human Rights Code. She was not allowed to work because of limitations directly related to her pregnancy. Furthermore, 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

British Columbia Teachers' Federation v. British Columbia Public School Employers' Association

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 benefits as two separate benefits with two distinct purposes. One was to provide benefits to birth mothers when they were recovering from the physical and psychological effects of birth, which no other class of parents experience, and the other was to provide benefits to parents while they are establishing a bond with their child.

The arbitrator agreed with the union, finding that previous case law recognized that the purpose of pregnancy leave and parental leave are different. Parental leave is a time for the parent to bond with the child, whereas pregnancy leave allows the mother time to recover from the pregnancy. In short, 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.

The arbitrator remitted the matter to the parties, who were about to renegotiate their collective agreement. He retained jurisdiction to make a final and binding determination if the parties were unable to agree on a non-discriminatory solution. While the Court of Appeal overruled the arbitrator’s decision, the Supreme Court of Canada reinstated the arbitrator’s decision in a one-paragraph decision.

3) Employers cannot constructively dismiss employees for being pregnant

Lipp v Maverick’s Sports Lounge

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.

Not surprisingly, the Tribunal held that the employer had created an inhospitable and discriminatory work environment such that the employee had no reasonable option but to depart. 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

Bray v Canadian College of Massage and Hydrotherapy

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. She had been employed with the college for nine years. 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.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Labour Law