Working women constituted 47 per cent of the Canadian workforce in 2014, according to Statistics Canada. Women productively contribute to the economy as labourers and cabbies, business owners and engineers, and in countless other ways. So one should think all employers would regard their workplace contributions as important enough to retain them when they become pregnant or re-engage them when they come off maternity leave.
Unfortunately, people working in employment law (lawyers, human rights advocates, human resources consultants) have been aware for some time of private sector employers dismissing pregnant employees or not hiring back women after maternity leave.
Those of us who’ve worked on human rights files and wrongful dismissal files know it’s not uncommon for female employees to be offered a buyout cheque, along with a letter they’re expected to sign to waive their right to pursue legal action, including making a human rights complaint.
Some lawyers and human resources workers have coined the phrase ‘baby bounce’ for such situations.
In the case of dismissal of a pregnant employee, the most common reason employers give is that it’s job-performance related, however vague that may be.
In the case of a mom on maternity leave, it’s often lack of work that’s the putative reason.
Depending on the length of time a woman has been employed, she may consider suing for wrongful dismissal. However, there are upfront out-of-pocket costs associated with a lawsuit (court filing fees among them) and the litigation process can be lengthy and expensive.
There’s another option to consider: Depending on the facts, a pregnant woman facing termination or a mom coming off maternity leave who learns she won’t be rehired may have grounds for a human rights complaint.
According to Section 7 (1) of the Alberta Human Rights Act, it’s illegal to refuse to employ, to refuse to continue to employ or to discriminate against anyone regarding terms of employment because of various listed grounds, including gender. Furthermore, Section 44 (2) of the act sets out that protection from discrimination based on gender includes without limitation “protection of a female from being adversely dealt with on the basis of pregnancy.” Human rights tribunals and the courts have consistently ruled that adverse treatment because of pregnancy constitutes gender discrimination.
The human rights complaint process is relatively straightforward and, unlike a wrongful dismissal suit, doesn’t entail filing fees. The process is also less formal than pursuing a civil claim in the courts and includes an early opportunity to discuss a mediated settlement.
However, if the parties are unable to come to an agreement and the complaint must go to a hearing, if the complaint is found to be valid a human rights tribunal has the authority to order payment of lost wages. In addition, it can award up to $25,000 in damages for violation of a complainant’s dignity and at least partial indemnification of a complainant’s legal fees, if not full indemnification.
However, a complaint must be made within one year from the date of the alleged discriminatory act. In the case of a woman who feels she was laid off because of pregnancy or was not rehired following maternity leave, the clock starts ticking from the date she was informed she no longer has a job.
It’s imperative for a woman in such a situation to immediately consult a lawyer. Job loss is typically very distressing. So it’s unfair to expect somebody in such circumstances to make a quick decision. Depending on the terms of the offer, pursuing a wrongful dismissal suit or making a human rights complaint may be preferable to taking the money and signing away legal rights.
(Please note this article provides general information only so doesn’t constitute legal advice.)
Donna L. Gee is the managing partner of Guardian Law Group, a Calgary-based full-service law firm whose practice areas include employment law, wills and estates law, will and estates litigation, and human rights law.