One Year Pregnancy Leaves: Strategies to Address Discrimination

By Shaun O’Brien

It has now been several years since the federal Employment Insurance Act and Ontario Employment Standards Act were amended to allow women a full year for pregnancy and parental leave. While seemingly heralding a victory in the rights of women and children, enough time has now passed to see that the impact on women in employment has been mixed. Some of the benefits of these changes are illusory in practice and anecdotal evidence suggests that employers are attempting to circumvent the real protections provided. However, employee organizations and human rights advocates can adopt a number of strategies to better enforce these important rights.

A. Statutory Pregnancy and Parental Leave

The federal Employment Insurance (“EI”) Act was amended effective December 31, 2000 to provide up to 50 weeks of insurance benefits for employees on pregnancy and parental leave. This was an increase from the previous coverage of six months. Coinciding with this change, the Ontario government amended the Employment Standards Act (“ESA”) to extend pregnancy and parental leaves to a total of 52 weeks, also an increase from the previous six months. While the EI Act allows women to be paid for a year of leave, the ESA protects the mother’s right to return to work following her year off. In particular, the ESA entitles the mother to a year’s leave and requires the employer to reinstate her at the end of her leave. She must be reinstated to the position she most recently held with the employer if it still exists, or to a comparable position if it does not: s. 53(1). Her employment may only be terminated solely for reasons unrelated to her leave: s. 53(2). In addition, her wages must be the greater of what she most recently earned with the employer and what she would have earned if she had not taken leave: s. 53(3).

B. Employer Efforts to Circumvent Statutory Obligations

Whether it be because of employer resistance to one-year leaves or because of other inappropriate attitudes surrounding working mothers, human rights advocates are increasingly noting problems arising prior to and at the end of pregnancy/parental leaves, in spite of the protections in the ESA. In particular, while the ESA (together with the Human Rights Code) protects the employee’s job and wages, employers are increasingly finding creative ways to effectively avoid providing pregnant and returning employees with the same job and compensation they would otherwise have. Some common examples of these tactics include:

• eliminating the employee’s position and placing the employee in a “comparable” position but which does not have the same effective level of responsibility or use of the employee’s skills;
• maintaining the employee’s job title but reducing the employee’s responsibility and authority;
• failing to promote the employee;
• failing to give the employee a bonus at the level she would have previously earned.

As with many human rights complaints, the challenge with many of these changes is that they can be difficult to prove. Changes in job responsibility and authority can be difficult to quantify, not to mention the subtle shifts in attitude that accompany reduced responsibility and authority. Moreover, it is often difficult or impossible to find direct evidence of the connection between the change and the pregnancy/parental leave. In some cases, evidence of such a connection technically should not be required (given that the ESA provides the right to the same or a comparable position on return to work, without the need to show that any change was due to a leave). However, as a practical matter, employee counsel and advocates need to emphasize the connection to the employee’s pregnancy or leave to make a compelling case 1 .

C. Strategies for Human Rights Advocates

1. Evidentiary Strategies

Advocates can adopt a number of strategies to deal with this increased tendency to marginalize pregnant women and returning mothers. The first is to draw on all available legal tools to deal with the difficulty in proving these cases. Two important evidentiary tools are:

(a) The jurisprudence which says that even if a breach of the Human Rights Code is only one among other causes leading to the action in question, then the entire action is tainted 2. Employers will inevitably raise a host of business reasons why the employee’s job has changed, or why the employee was not promoted. These do not need to be entirely refuted. It is only necessary to show that the discriminatory consideration played into the decision.

(b) The reversal of onus to the employer when there is a change in employment circumstances of a pregnant employee or returning mother. As set out in Wah Lung Labels Canada Inc., [1998] O.E.S.A.D. No. 292:

Once the employee establishes her pregnancy, employer knowledge of it, and some adverse consequence to her, an adjudicator will draw an inference that the reason for that adverse change in the employment circumstances of a pregnant employee is because of her pregnancy. An employer may, of course, rebut that inference.

The Court went on to describe the reasons for the inference:

The employee is particularly vulnerable at that time – she has the natural burden and discomforts of being pregnant, she has the certain knowledge that she will be leaving her work for an extended period of time and she will be concerned that her employment prospects and advancement might be prejudiced during her impending absence. She will suffer a drop in income during her maternity leave, so her capacity to continue to work during her pregnancy is important to her financial projection for her maternity. It is relatively easy for an employer to discount the value of an employee who has become pregnant, to cease to “see” her and to overlook her in future planning because she will be away during the period of her maternity leave. It is difficult for a pregnant employee to contest business decisions which are made by the employer which affect her adversely. She is beset by child care responsibilities at precisely the time she needs to be gathering information which may assist her to establish the absence of bona fides on the part of the employer.

This reversed onus assists employees who may not have direct evidence of their employer’s bad faith in changing their employment circumstances.

2. Remedial Strategies

In addition to employing these evidentiary strategies, advocates can press for full and extensive remedies to the discrimination against pregnant and returning mothers. These can compensate the employee, but also deter the employer from treating this type of discrimination as a necessary cost of business.

In particular, for employees who have a short period of service, the Human Rights Code provides favourable remedies by compensating a dismissed employee for wages lost to the date of the award (rather than only for a reasonable notice period, starting from the date of dismissal, as in civil cases) 3. In addition, new amendments to the Human Rights Code will see the removal of the $10,000 limit for mental anguish damages, as well as an elimination of the requirement for wilful or reckless conduct under s. 41(1)(b). Under the new amendments, the Human Rights Tribunal will be empowered to award unlimited monetary compensation for injury to dignity, feelings and self-respect without the requirement of wilful or reckless conduct. Finally, under the Human Rights Code, the employee can seek non-monetary remedies to change an employer’s future practice. These could include implementing training to prevent discrimination and developing certain policies and procedures surrounding pregnancy/parental leaves.

A civil claim in court also offers new remedial opportunities. While a claim in court is not directly permitted for a simple claim of discrimination, the court can address ESA violations and can adjudicate human rights concerns when they form part of another cause of action, the most obvious being a claim for wrongful or constructive dismissal. In the recent Keays v. Honda Canada decision, the Ontario Court of Appeal awarded a plaintiff $100,000 in punitive damages as part of a wrongful dismissal claim where the employer treated the employee egregiously over an extended period of time, including in failing to accommodate his disability. While this case does not deal specifically with pregnancy-related discrimination, it does suggest that courts are increasingly willing to award large punitive damages for human rights violations 4.

D. Conclusion

Cases on behalf of pregnant women and mothers returning to work are always difficult. In addition to the normal stresses surrounding any employment issue, the plaintiffs in these cases have the physical stresses of pregnancy and the emotional issues of addressing child care and leaving children to return to work. While the one year leave provides many benefits to mothers and children, returning to work on the other end has become, if anything, more difficult. In employing the best evidentiary strategies and pressing for the fullest remedies, advocates may deter employers from continuing the subtle but significant discrimination that often accompanies these leaves.

1. See Shoppers Drug Mart (c.o.b. Parry Sound Drugs), [2006] O.E.S.A.D. No. 51 (Ont. Lab. Rel. Bd.); Re Ontario Blue Cross, [1994] O.E.S.A.D. No. 203 (Ref.) for examples where a pregnant/returning employee’s dismissal was upheld when there was no connection drawn between the dismissal and the pregnancy/leave.
2. Horton v. Niagara (Regional Municipality) (1987), 9 C.H.R.R.D/4611 (Ont. Bd. of Inq.); Re Foster Wheeler and Ontario Human Rights Commission et al. (1987), 5 A.C.W.S. (3d) 36 (Ont. Div. Ct.)
3. Impact Interiors v. Ontario (Human Rights Commission), [1998] O.J. No. 2908 (C.A.)
4. Note that the Keays v. Honda Canada Inc. decision, supra, is currently under appeal to the Supreme Court of Canada. The Supreme Court of Canada’s treatment of the punitive damages award will be closely followed.