The termination of a pregnant employee seems like a situation where a human rights violation could very well be found. However, in a recent case before the Human Rights Tribunal of Ontario, the Tribunal found that when a pregnant employee is terminated for reasons outside of her pregnancy, the employer may be safe from claims of discrimination.

A very brief period of employment

The employee was hired as a software development manager for the employer, which operated in the trucking industry. She applied for the position on April 24, 2014, was interviewed and offered the position on May 1, 2015, and started work on May 14, 2014. She was terminated only nine days later after the employer found her to be to be unsuitable for the job. The employee was working under a probationary period at the time of her termination.

The employee was in her third month of pregnancy when she was hired for the job, something she disclosed to the employer when she accepted the position. At the time of the disclosure, the employer said he would have to speak to his business partner about whether it would be an issue, coming back five minutes later, saying it was not a concern (the employee testified the employer said her pregnancy wasn’t optimal, but was ultimately ok).

The employee started her career as a software developer in 2000 but between 2004 and 2006 she transitioned to a management role, working as a Project Manager and Test Manager for various technology companies. She submitted a number of documents at the hearing outlining her work in previous roles, intending to demonstrate her ability to handle large and complex jobs.

The employee claimed she was terminated because of her pregnancy, stating she was not properly trained for the job. The employer responded by stating the person they hired to fill the position after her termination would only be serving in the role for one year before relocating to the United States. In any event, the employer said the employee would be returning after her maternity leave and would have been properly trained in light of that.

The employer testified that they fired the employee because they found her to not be suited to the job. The employer testified they started to have concerns about her work shortly after she commenced employment. They were specifically concerned with her technical expertise as well as that she did not seem to be a “leader” of the team. While the employer stated they discussed these concerns with the employee, she responded by stating that the concerns were addressed on only her second day on the job and she had no opportunity to address the issues, adding that she had insufficient coaching.

The Tribunal’s Analysis

Section 5(1) of the Human Rights Code (the “Code”) prohibits discrimination on the basis of sex, stating “The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.”

In order for the employee to demonstrate that she was discriminated against on the basis of pregnancy, she had to establish the pregnancy was a factor in the employer’s decision to fire her. In this case, the employee submitted pregnancy as being a factor for two reasons, the first being that there was some reservation expressed when she disclosed her pregnancy. Secondly, she submitted that her job performance did not justify termination because she had only been in the job for just over a week.

The Tribunal found that even if the employer said the employee’s pregnancy was not optimal, it was ultimately not an issue, and she was given the job. There was no evidence that the employer or any other employees expressed any discriminatory concerns during her brief time with the company. In regarding to her termination, the Tribunal found the employer “provided a credible, non-discriminatory explanation for his actions,” adding “ It may be true that the (employee) could have ‘grown into’ the job. It is not, however, necessary for me to determine whether the respondent and his team lead were unfair in their assessment that the applicant lacked the technical and management skills necessary for the position. Fair or otherwise, I find that the evidence supports the (employer’s) position that the decision was made for non-discriminatory reasons.”

At HMC Lawyers, we represent employers and employees in legal matters arising out of the workplace. We have decades of collective experience advising clients in a range of sectors on matters of employment law, including those concerning the Employment Standards Code and the Human Rights Act. Contact us by phone at 403-269-7220 or online for insightful employment law advice today.