This Human Rights Decision is a perfect example of why you should speak
to a lawyer before making any decisions with respect to pregnant
employees. In the case of Jessica Maciel v. 
Fashion
Coiffeurs, the applicant Maciel was hired to work as a receptionist in
two related salons operated by the respondents in the Erin Mills Town
Centre. At the time she was hired she was just over four months
pregnant. She alleges that she advised the manager of the salons that
she was pregnant on the first day of her job and was fired shortly
thereafter. The human rights tribunal was of the view that the
applicant made out a prima facie case of discrimination on the basis of
sex (pregnancy), contrary to sections 5(1), 10(2) and 9 of the Code and
that the respondents failed to prove a non-discriminatory explanation
for the precipitous termination of the applicant’s employment.
There are certain remedies set out by S. 42.5 of the Human Rights Code,
one being monetary compensation. Compensation was a big issue in this
hearing given that the employer prohibited the employee from satisfying
“fresh hours” as required for HRDC in order to qualify for maternity
leave benefits. The applicant testified that after she was terminated
from the respondents’ salons, she attempted to look for work, but did
not have any success. She attributed her lack of success, in part, to
the fact that her pregnancy was increasingly obvious to any potential
employer. She had two interviews, but at each of these interviews,
testified that the interviewers expressed their opinion that the
physical nature of the work would be dangerous for a pregnant woman. At
seven months pregnant, she gave up her job search.
The tribunal noted that “With no insurable hours, she was ineligible for maternity and parental benefits following the birth of her son.” As pointed out in paragraph 74 of Dodds v. 2008573 Ontario Inc., 2007 HRTO 17 (CanLII): “It
is reasonably foreseeable that a pregnant woman will be unable to find
alternate employment during her pregnancy to make up for any shortfall
in eligibility requirements to qualify for full maternity leave and
parental benefits.”
The tribunal found that with respect to the maternity and parental
leave, the applicant would have met the threshold for eligibility had
she continued to work with the respondents until her due date. The
applicant testified that she was planning to and was physically able to
work until her due date. The tribunal found that these benefits would
have been payable at 55% of the applicant’s averaged insured earnings
(i.e., $242 / week) for 50 weeks. The gross total loss of benefits is
$12,100.00. Employers – please don’t interfere with the employment of a
pregnant woman without the advice and opinion of an employment lawyer.
A small business like the respondents obviously did not foresee the
issue of discrimination having a probably impact on Ms. Maciel not
qualifying for maternity leave benefits. If you are a small business
like the repondents you need to protect yourself by learning your
rights.
You can contact Matt Lalande for more information and you can read a copy of the decision below.