Recently, headlines reported that Google Canada has defended a lawsuit by arguing that “pregnancy” itself is not a protected ground under Ontario’s Human Rights Code. This assertion surprised many and sparked conversation about whether pregnancy truly is protected under Ontario human rights law.
Based on the current reading of the law, pregnancy and related circumstances are understood to be protected under the Ontario Human Rights Code. Here’s what that means in practice.
Understanding the Ontario Human Rights Code regarding pregnancy
The Ontario Human Rights Code lists “sex” as a protected ground against discrimination. While the Code does not list “pregnancy” as a separate category, section 10(2) states that discrimination because a woman is or may become pregnant is included in sex discrimination. The Human Rights Tribunal, which interprets and guides enforcement of the Code, has for years taken the position that the law protects against discrimination arising from pregnancy, having a baby, related complications, breastfeeding, or simply the possibility of pregnancy.
As a result, and based on current human rights guidance, employers and others are prohibited in every key area including employment, housing, services, and contracts from making negative decisions about someone simply due to being, possibly being, or recently having been pregnant.
How is the Ontario Human Rights Code regarding pregnancy applied to the real world?
Consider the example of an employee who tells their boss about a pregnancy and then finds themselves passed up for projects or even terminated. The prevailing legal interpretation in Ontario is that this would likely be considered discrimination, as courts and the Human Rights Tribunal have generally ruled that pregnancy-linked adverse treatment can amount to discrimination under the Code.
Further, the law does not require the employee to prove pregnancy was the sole reason for the negative treatment, just that it was a factor. If there is evidence that a pregnancy played any part in the employer’s decision, the employee’s rights may be engaged, based on how the law is currently applied.
Why Google’s statement misses the mark when it comes to pregnancy being a protected ground from discrimination?
Why would Google put forward this argument? Sometimes, organizations push every available legal theory when defending claims. However, their position seems to conflict with both the text of the Code and the current interpretations expressed by Ontario’s courts and human rights authorities. Legal experts and the Human Rights Commission have made it clear that pregnancy is covered as a form of sex discrimination.
What is the key takeaway for employees and employers regarding Google’s claim regarding pregnancy
If you are pregnant, planning to become pregnant, or returning to work after having a child, Ontario law at least as currently interpreted protects you from discrimination linked to your pregnancy. Any negative action, such as firing, demotion, harassment, or denial of opportunity connected to pregnancy status, could fall within the prohibition against sex discrimination. Employers should be aware of this prevailing guidance, both to comply with legal obligations and to support employees through all stages of life.
In summary, while high-profile disputes occasionally raise questions, the current reading of the Ontario Human Rights Code strongly suggests that pregnancy is a protected ground, and discriminatory actions based on pregnancy may very well be found to violate human rights law in Ontario.
To better understand your employment rights, we encourage employees and employers to seek legal advice. We at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you are looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.
Author – Rachel Patten
