By: Linda McKay-Panos
This blog article originally appeared in LawNow Vol. 41(4), 2017 and is reprinted with permission.
Whenever I teach undergrad students about gender discrimination, they are often quite shocked to discover that as recently as the 1970s, there was a Supreme Court of Canada (SCC) ruling that found that discrimination on the basis of pregnancy was not a form of gender discrimination (See: Bliss v Canada (Attorney General),  1 SCR 183 (Bliss)). However, the SCC reversed itself in Brooks v Canada Safeway,  1 SCR 1219 (Brooks). Afterward, protection from discrimination on the basis of pregnancy was clearly provided in human rights law across Canada. Although an entire generation has grown with the understanding that women cannot be discriminated against on the basis of pregnancy (e.g., in employment, rental accommodation or services customarily available to the public), there are indications of incidents involving pregnancy discrimination in today’s Canada.
Brooks involved a rather complex private employer’s disability benefits scheme. Safeway’s insurance plan provided weekly benefits for loss of pay due to accident or sickness. While the plan covered pregnant employees, it excluded coverage for the period commencing ten weeks prior to the anticipated birth to six weeks after the birth (about 17 weeks). During that period, women were not entitled to any benefits, even if they suffered an ailment unrelated to their pregnancy. Several employees filed complaints to the Manitoba Human Rights Commission, arguing that this policy amounted to gender discrimination contrary to the Manitoba Human Rights Code. The Commission and the lower courts were bound by the decision in Bliss, which had held that discrimination on the basis of pregnancy was not a form of sex or gender discrimination. Thus, the claim of discrimination was dismissed until the case arrived at the SCC. The SCC stated unequivocally that: “discrimination on the basis of pregnancy is discrimination on the basis of sex” (para 43). The SCC went on to say that the decision in Bliss, which had arrived at the opposite conclusion, was inconsistent with the SCC’s current approach to interpreting human rights legislation in subsequent cases, and should no longer be followed (para 43).
After Brooks was decided, unions across Canada launched similar human rights cases. For example, Alberta had Alberta Hospital Association v Parcels (1992), 90 DLR (4th) 703 (ABQB). Since Brooks was decided, all human rights legislation across Canada protects from pregnancy discrimination, which is considered to be a form of gender (sex) discrimination. For example, the Alberta Human Rights Act, RSA 2000 C A-25.5 was amended to add the following:
44(2) Whenever this Act protects a person from being adversely dealt with on the basis of gender, the protection includes, without limitation, protection of a female from being adversely dealt with on the basis of pregnancy.
It should be noted that there are some situations where it is a bona fide (good faith) occupational requirement that a worker not be pregnant. In that case, the employer would have to show that the woman’s pregnancy could not be accommodated to the point of undue hardship. For example, if a woman’s occupation involved working with chemicals that could endanger her and the foetus, the employer would have to show that it could not move the pregnant employee to a safer job without experiencing undue hardship (e.g., excessive cost to the workplace).
After the SCC ruled and after provincial and federal human rights legislation was amended, while one might believe that pregnancy-related human rights complaints would increase for a period of time (as women and employers were made aware of their rights and obligations), they would eventually decline. By 2017, one would expect that these complaints would have diminished to the point that they are quite rare.
However, various civil society and advocacy groups are receiving anecdotal information that there are still a number of pregnancy discrimination cases. In particular, women are reporting that they are being denied the opportunity to return to their employment after taking maternity leave. Often, upon their request to return, companies are offering financial settlements, viewing the payoffs as a “cost of doing business”. That is, the company recognizes that they may be violating human rights law but view this practice as a cheaper way of dealing with the circumstance that they don’t want the person to return from maternity leave to her previous position.
Human Rights Commissions report annually about the grounds and areas of complaints that they take on board. For many years, in Alberta, gender and employment were the largest ground and area of complaint. A few years ago, physical disability replaced gender as the number one ground for complaint, but continues to be followed closely by gender. At meeting with Alberta Human Rights Commission with members of the Rocky Mountain Civil Liberties Association in 2011, it was reported that for the fiscal year of April 2010 to March 2011, 212 complaints received by the Commission were based on gender discrimination and half of those (108) were based on pregnancy. In total, about 15 percent of the overall complaints they investigated (723) involved pregnancy. Thus, despite the existence of a law prohibiting discrimination on the basis of pregnancy for about 20 years in Alberta, it is still a problem (Rocky Mountain Civil Liberties Association, “Is there a Pregnant Pause in Implementation of Alberta Human Rights Legislation?” (October 13, 2011) online: http://www.rmcla.ca/blog/?p=167). Many of the investigations are resolved at early stages and therefore the cases remain unreported.
There are also recent reported decisions. For example, in Re British Columbia Public School Employers’ Assn. and BCTF (Supplemental Employment Benefits), 2014 SCC 70, the employer was found by an arbitrator to have failed to provide supplemental employment benefits to birth mothers (benefits intended to supplement employment insurance and parental leave benefits). The Supreme Court of Canada upheld the arbitrator’s award, which had held that the practice was discriminatory and would have allowed the parties to negotiate a remedy. In Canada (Attorney General) v Nadeau, 2015 FC 1287, the employer refused to provide a clothing allowance or a pregnancy uniform for a corrections officer. This was held by the arbitrator to be indirect discrimination on the basis of pregnancy and the reviewing court found that decision to be reasonable. In Pelchat v Ramada Inn and Suites (Cold Lake), 2016 AHRC 11, the complainant was employed as a housekeeper and alleged that she was sexually harassed and also received an unjustified warning and termination based on her pregnancy. Pelchat was terminated by her employer when she was eight months pregnant. At a meeting when she was 7.5 months pregnant, Pelchat was given a formal reprimand letter indicating that her pregnancy was interfering with her work, and she was advised that she should find work elsewhere. Although she indicated that her work was not affected by her pregnancy, she was terminated two weeks later. The Human Rights Tribunal concluded that Pelchat had made out a prima facie case of discrimination on the ground of gender for the discipline and termination of employment due to her pregnancy. The owner tried to defend itself based on its lack of knowledge of the actions of the manager, coupled with Pelchat’s performance issues. However, if there was a concern about performance due to pregnancy, there was no evidence of any attempts to accommodate her situation. The defence was not successful and the Human Rights Tribunal ordered that the complainant be paid lost wages plus $25,000 in damages for loss of dignity (the award was increased because there was also sexual harassment).
These anecdotal reports and cases indicate that human rights and women’s rights advocates must be vigilant in ensuring that employers and others are educated about their rights and responsibilities. Decisions to terminate on the basis of pregnancy discrimination (or not re-hire after maternity) should not be tolerated; nor should it be considered a cost of doing business to breach human rights law.