Authors: Bram Lecker & Kimberley Sebag

Fired While Pregnant

Nothing can be more distressing for a woman than getting fired while pregnant. While most women can comfortably work through their pregnancy, they face unique challenges. For the next few months, they must remain healthy as well as productive on the job. It is not uncommon for some to experience nausea and exhaustion early in their pregnancy. These symptoms become particularly stressful for those not ready to announce their pregnancy to their employer. The obvious physical changes that occur as the pregnancy progresses can make it difficult for some women to perform their normal job. And for others, pregnancy related illnesses may require them to take extended time off from work. To cap it all, our laws offer parents generous protected leaves of absence after the baby arrives.

Without doubt, pregnancy and parenting affect the productivity of our fast-paced and competitive workplaces. They require accommodations. A few inconsiderate employers might consider this inconvenient. Pregnant women remain particularly sensitized to the subject of job security, more so than any other group. This is specifically why our employment laws protect pregnant women more than any other employee. If you are fired while pregnant, and because of your pregnancy, this will likely not bode well for your employer.

Pregnancy and Employment laws

In Ontario, various statutes protect you through your journey into parenthood. The protection starts from the time you announce your pregnancy or when it becomes physically apparent. It continues into your pregnancy and while you are on maternity and parental leave. And finally, the protection extends through the time you return from your leave. If you were specifically fired while pregnant, or during your leave for reasons related to your pregnancy, then the legal system provides you with three options to pursue your rights. You can raise a human rights claim, make a complaint to the Ministry of Labour or file a wrongful dismissal suit against your employer.

Fired While Pregnant: OHRC

Ontario’s Human Rights Code (OHRC) prohibits actions that discriminate against people based on a several protected grounds. One of them is pregnancy. Your employer must prove that your pregnancy was not a factor in the termination. Essentially, they must provide a non-discriminatory explanation for their actions.

In 2015, Yvette Wratten filed such a complaint with the Human Rights Commission against her employer, Toppers Pizza. The Commission awarded her $20,000 for this injustice. While this was a victory, plaintiffs who pursue an OHRC action should clearly understand the limitations. The Human Rights Code only addresses matters of discrimination. Accordingly, they cannot award damages for other claims commonly associated with such terminations, like vacation pay, notice and severance, etc.

Ministry of Labour

The Employment Standards Branch of the Ministry of Labour is a one stop shop for those types of claims. It addresses all matters related to a job termination. This includes workplace disputes related to your pregnancy. It is a second avenue you can pursue if fired while pregnant.

The Employment Standards Act, 2000 (ESA) requires your employer to reinstate you to the same position after you return from your leave, if the job still exists. It also prohibits your employer from penalizing or terminating you for exercising your right to take protected leaves, like maternity and parental leave.

Following a complaint of this nature, the Ministry will investigate before reaching a decision. You can appeal the decision with the Ontario Labour Relations Board if you do not agree. Unlike the OHRC, the Employment Standards Branch can award comprehensive damages for claims like unpaid wages, severance, vacation pay and mental distress which are common with such terminations. They can also order job reinstatement.

There are no filing fees with the OHRC or Ministry of Labour and the procedures with administrative tribunals remain straightforward. Retaining a lawyer is not compulsory for these proceedings. However your employer will, in all likelihood, hire professional legal services to defend themselves. Accordingly, we highly recommend you proceed with equal representation for yourself to improve your chances of success.

Wrongful Dismissal Lawsuit

In our experience, when employers terminate a pregnant woman, the case is rarely straightforward. This was demonstrated in a recently publicized article in the Toronto Star. The plaintiff called her clinic from work about the results of her pregnancy test. Two days later her employer fired her but claimed it was for reasons unrelated to the pregnancy.

Complex cases like this one require legal intervention. A lawyer will review the facts carefully before advising you. If you have a wrongful dismissal case against your employer, they will take it on if they are reasonably confident of securing a larger settlement than you could by taking it directly to the OHRC or Ministry of Labour.

An experienced lawyer will not offer this opinion as a rough guess. Rather, they will base it on precedents, outcomes from other similar cases heard by the courts. You should, in fact, select your lawyer based on their experience litigating similar cases.  If they have played a direct role in establishing precedent setting cases, you can expect very aggressive representation from them. They know how to do this and will confidently draw upon this knowledge and experience during settlement negotiations.

Pregnancy: A Workplace issue Worldwide.

Since the feminist movement of the 1960’s, women have entered the workforce in great numbers. Today, women constitute almost half the workforce in Canada and the U.S. They make up at least 40% of workers in 80 countries worldwide. Consequently, pregnancy and parenting related issues have become matters for the workplace to deal with.

Progressive governments have attempted to address this through legislation. Canadian employment laws and pregnancy benefits are among the best in the world. We offer 17 weeks of pregnancy leave and 35 weeks of parental leave for both mothers and fathers. Our Federal Government offers financial assistance through Employment Insurance by paying you 55% of your earnings. And our Provincial employment laws protect your job upon your return.

European countries are also known for their forward-thinking approach to pregnancy leave. France, for example, offers birth mothers 16 weeks of maternity leave, paying them 100% of their earnings. In contrast, the U.S. Federal Government offers 12 weeks of unpaid maternity leave, leaving State governments to administer pay subsidies as they see fit. Many, like Indiana, offer none, while California offers a small subsidy through a state-wide short-term disability insurance program.

Acceptance of Pregnancy & Parenthood

There is a time lag from when laws are first implemented and when they become socially accepted. In Ontario, the ESA cannot be clearer about the superior protection afforded to pregnant women and parents. Employers must meet a very high burden of proof to succeed at their claim for firing a woman during her pregnancy. Yet, women in our province continue to feel vulnerable about their jobs when they are pregnant. It seems like we have some ways to go before employers accept pregnancy and parenthood as a normal occurrence of nature, one they must fairly adjust to, like any other business factor.

The team of lawyers at Lecker & Associates exclusively represent Ontario employees.  If you were fired while pregnant, contact us right away. We understand this area of law extremely well and can likely help you better than most.

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