Pregnant employees entitled to deference

Date: 2009
Author: Daniel A. Lublin
Publication: Metro

Human rights claims present increased “exposure” for employers

Jessica Maciel was crestfallen. Fired on her first day of work after disclosing she was pregnant, Maciel was not about to go quietly.
Just out of school, Maciel secured her first full-time job as a receptionist for Fashion Coiffures, a Toronto area beauty salon. Unbeknownst to the salon, when it hired Maciel she was four months pregnant.
During a training session on her first day of work, Maciel experienced morning sickness.
After explaining that she was pregnant to Cinzia Conforti, the salon’s manager, Conforti’s tone shifted and she promptly expressed concern about Maciel’s “long-term availability.” Fifteen minutes after the call ended, Maciel was told to pack up her belongings and leave the salon to go home.
At a recent hearing before the Ontario Human Rights Tribunal, the salon attempted to explain its actions in terminating Maciel by arguing that after she started work, she asked for a part-time position but that the salon could only accommodate her in a full-time role.
Senior human rights adjudicator Naomi Overend rejected Conforti’s explanation. In a decision finding the Salon guilty of discrimination, Overend saw no credible explanation for the salon’s argument that Maciel had applied for and accepted a full-time position and then suddenly proposed a part-time job. According to Overend, it was clear that the disclosure of Maciel’s pregnancy was the only factor in the Salon’s decision to fire her – only moments later.
Maciel was awarded nearly $20,000 for lost wages and employment insurance benefits she would have been eligible for, as well as another $15,000 in “punitive” damages for breach of the Human Rights Code.
This decision, while not novel, should give employers pause for at least two reasons. First, I learned about the case from a mass press release sent by the Human Rights Legal Support Centre, a government-sponsored program that argues cases of discrimination on behalf of employees. Aside from this column, or perhaps the morning news, employers rarely had to concern themselves with negative public scrutiny arising from seeing their names widely broadcasted on the wrong side of a press release – until now.
Second, the broad panoply of potential damage awards for human rights violations considerably increases the scope and unpredictability of human rights litigation before provincial tribunals. Since many of these cases involve social or moral rights, employers should be prepared to settle meritorious claims quickly or risk facing an award of damages designed to act as a precedent.