Pregnancy Discrimination – Mom’s the Word

Monthly, sometimes weekly, and at times even daily, we are asked about expectant moms’ rights:

• I announced that I am pregnant and was:
  • passed over for a promotion,
  • denied opportunities or training,
  • left out of meetings,
  • reassigned to work on less important projects, or
  • fired.
• People at work are making negative comments about me and:
  • my (lack of) commitment to work,
  • my need to take time off, or
  • my modified duties …
• My employer can’t do that… right?

We also get regular questions from our employer clients:

• She went on maternity leave and we like her replacement better…
• We were having issues with her performance before she said she was pregnant, and we were going to fire her…
• We are going through a major restructuring and eliminating a bunch of positions including a pregnant woman’s position...
• We can let her go… right?

There is so much misinformation and confusion about the rights of working pregnant women. The law is clear, being fired, laid off, denied opportunities or experiencing other negative treatment because you are pregnant is discrimination.

Treating an employee differently (negatively) because they are pregnant or are taking maternity or parental leave is discrimination. Pregnancy does not have to be the only reason or even the main reason for the differential treatment. If it is any part of the reason for the negative treatment, it is discrimination. But pregnancy does not excuse an employee from meeting performance expectations or insulate them from the effects of a company-wide restructuring. Whether there was discrimination is unique to each case.

The protections working pregnant women in BC have come from the BC Human Rights Code, the BC Employment Standards Act and case Law. The Human Rights Code says that:

a person must not refuse to employ or refuse to continue to employ a person, or discriminate against a person regarding employment or any term or condition of employment, because of the persons sex.

The Supreme Court of Canada held in Brooks v. Canada Safeway Ltd., [1989] 1 SCR 1219 that sex discrimination includes discrimination based on pregnancy.

The Employment Standards Act says that:

an employer must not, because of an employee’s pregnancy or leave terminate her employment or change a condition of her employment without her written consent. It also says that as soon as her leave ends, the employer must place her in the position she held before taking leave, or a comparable position.

If you are an expectant mom concerned about any of these issues, or an employer thinking about letting an expectant mom go (even for a good reason) you should consult with an employment/workplace human rights lawyer. These can be tricky issues to manage for soon-to-be/new parents and businesses.

For expectant moms, we can help you navigate this stressful situation, inform you of your rights and come up with a plan for you moving forward.  Plans are unique to each person and can include everything from helping educate your employer about its obligations to you, to helping you leave your workplace and get compensation.

For employers, we can help you understand your obligations and risks, and how to act in a manner that is consistent with the law and achieve your own best outcome.