Pregnancy Discrimination: Can You Fire Someone for Being Pregnant?
Although employers have a lot of latitude in determining who to dismiss, they cannot do so for discriminatory reasons. This means that the decision to terminate the employee cannot be in any way related to a protected ground under human rights legislation (i.e. race, gender, country of origin, family status, etc.). This point was further emphasized in a recent decision by the British Columbia Human Rights Tribunal, which recently awarded a former employee $20,000 in damages as a result of her discriminatory termination.
Ms. Seema Lall began working at Apidel Technologies on a remote basis, booking sales meetings and making calls from her home in Guyana. After she immigrated to Canada, she continued to work for the company. Although there were other minor bones of contention, such as her application for a US visa and her call numbers, given that she had informed the company of her pregnancy just three weeks prior to her termination, the Tribunal found that Lall’s pregnancy was a factor in her termination. Essentially, the Tribunal drew an inference that the termination was discriminatory based on the timing of the termination.
What should employers know when thinking about terminating a pregnant employee?
Employers must be exceedingly careful when deciding whether to terminate an employee just after being notified of her pregnancy. There are two main reasons for caution. The first reason is made clear from this case: the optics do not weigh in the employer’s favour. It is very difficult to prove that the termination was in no part because of the pregnancy announcement, as it can be seen as the employer acting to avoid paying out maternity leave benefits. The second reason relates to reasonable notice under common law. As an employee, you may be entitled to reasonable notice of dismissal, which takes into account your chances of re-employing in a comparable position during your notice period, which, if you were terminated due to a pregnancy announcement, may encapsulate the period before and after your pregnancy. Your current employer is obligated to protect you from discrimination on protected human rights grounds, but new employers looking to hire you might not be, as it is very difficult to prove discrimination in hiring. As a result, your notice period may be longer, because the likelihood of you being hired in the months leading up to your pregnancy as well as in the months after may be quite low.
What should someone experiencing workplace or pregnancy discrimination do?
If you or someone you know feels that they are experiencing workplace or pregnancy discrimination on human rights grounds, it is important to speak with an experienced employment lawyer to understand your workplace rights. The experienced employment lawyers 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.
Author – Carson Healey