Can an Employer Layoff a Pregnant Employee?
Ontario Human Rights Code
Employers in Ontario are protected from discriminating against employees in the workplace under the Ontario Human Rights Code (the “Code”) based on protected grounds. The protected grounds include age, citizenship, ancestry, race, ethnic origin, place of origin, creed, disability, family status, marital status, gender identity or expression, record of offences, sexual orientation, and sex (including pregnancy and breastfeeding).
How does the Human Rights Code protect pregnant employees?
Under the Code, it is illegal to discriminate against a worker because the employee is pregnant or has specific needs related to pregnancy. Women who are pregnant have the right to be free from sexual harassment and behaviour related to pregnancy. Further, women have the right to seek accommodation for pregnancy-related needs. This includes requesting additional breaks, a change in job duties, or a more flexible work schedule.
The Code also protects employees if they experience reprisal or threats of reprisal due to an employee asserting their rights under the Code. Reprisal is defined under the Code as an action, or threat, that is intended to punish an employee for claiming or enforcing under the Code. To prove reprisal, an employee does not have to show that their rights were actually infringed. Rather, an employee must demonstrate that the employer acted, or threatened to act against the employee for trying to enforce a Code right. For example, if an employer threatens to terminate an employee’s employment because the employee requested to take pregnancy leave, the employer’s action may constitute reprisal under the Code.
Employees experiencing discrimination or reprisal due to pregnancy can seek recourse through the Ontario Human Rights Tribunal (the “Tribunal”) to claim damages for human rights discrimination. Applicants must file their human rights application within one (1) year after the most recent incident of discrimination in order to have the application heard by the Tribunal.
How does the Employment Standards Act, 2000 protect pregnant employees?
In addition to rights under the Code, pregnant employees are entitled to pregnancy and parental leave under the Ontario Employment Standards Act, 2000 (the “ESA”). Under the ESA, pregnant employees have the right to take up to 17 weeks of unpaid pregnancy leave and must provide at least two weeks’ written notice before beginning pregnancy leave. Birth mothers who take parental leave are entitled to take up to 61 weeks of parental leave and all other parents are entitled to take up to 63 weeks of parental leave.
What should happen when you return to work after maternity leave?
An employee who takes pregnancy or parental leave is entitled to the same job the employee had before the leave began or a comparable position, if the employee’s old job no longer exists. In these circumstances, the employee must be paid at least as much as what they were earning prior to taking leave. However, an employer cannot penalize an employee in any way because the employee took pregnancy leave or plans to take pregnancy leave. As such, employers are not permitted to fire employees for any reasons related to pregnancy or taking pregnancy or parental leave under the Code or the ESA. If an employer fires an employee because she took pregnancy or parental leave, the employee may make an application at the Ministry of Labour to request for her position back, together with compensation for lost wages. Alternatively, an employee may also seek damages for wrongful dismissal in the civil courts along with additional damages for breach of the Code.
When can an employer terminate an employee returning from maternity leave?
An employer may terminate an employee after an employee returns from maternity leave if the reasons for terminating an employee are not related to the employee’s pregnancy leave. In general, an employer does not have to reinstate an employee to her previous position or provide comparable employment if the employer’s reasons for ending the employment relationship are completely unrelated to pregnancy leave (eg: restructuring). The question of whether an employer violated an employee’s rights are based on fact: was the employee terminated because of taking maternity leave, or was there another reason? If an employee strongly believes that she was terminated due to taking pregnancy leave, then that employee may file a claim with the Ontario Human Rights Tribunal or file a claim with the Ontario Ministry of Labour.
Lastly, an employee on pregnancy or parental leave has the right to continue to participate in certain benefit plans that an employer offers. This includes participating in the employer’s existing pension plans, life insurance plans, extended health plans, dental plans, and accidental death plans.
How can Whitten & Lublin help?
In short, in answer to the question “can an employer lay off a pregnant employee”, the answer is no, so long as the pregnant employee is not terminated in whole or in part due to their pregnancy. If this occurs, the employee may be able to seek legal action against the employer under the ESA or the Code. If you are an employee who was laid off due to pregnancy-related reasons, contact us for further information regarding your entitlements online or by phone at (416) 640-2667.
Author – Abby Leung