1. Introduction

The Ontario Human Rights Code states that it is public policy in Ontario to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination. The Code aims to create a climate of understanding and mutual respect for the dignity and worth of each person, so that each person feels a part of the community and feels able to contribute to the community.

The Code prohibits discrimination because of sex. This includes the right to equal treatment without discrimination because a woman[2] is, was, or may become pregnant or because she has had a baby.[3]

Having children benefits society as a whole. Thus, women should not be disadvantaged because they are or have been pregnant. The Supreme Court of Canada has recognized that the financial and social burdens and cost associated with having children should not rest entirely on women, stating, “That those who bear children and benefit society as a whole should not be economically or socially disadvantaged seems to bespeak the obvious.”[4]

Canada is a party to several international agreements and conventions that contain provisions on the pre-natal and post-natal periods. Article 10(2) of the International Covenant on Economic, Social and Cultural Rights provides that special protection should be given to mothers during a reasonable period before and after childbirth. During this time, working mothers should be accorded paid leave or leave with adequate social security benefits.[5] The Convention on the Elimination of All Forms of Discrimination Against Women states that women shall have appropriate services in connection with pregnancy and breastfeeding, including maternity leave and protections against loss of employment.[6] These covenants recognize the social significance of motherhood, and require States Parties, such as Canada, to ensure a proper understanding of maternity as a social function and to take steps to make sure women are not prevented from reaching their full potential, particularly in the workplace, because of caregiving responsibilities towards their children.

While there have been significant advances towards gender equality, discrimination against women because of pregnancy unfortunately continues to be a common practice in society, particularly in employment. The Human Rights Tribunal of Ontario (HRTO) has remarked:

In this day and age it is still surprising to hear that a pregnant employee, who has medical documentation supporting that she can work the duration of her pregnancy, is being subjected to unilaterally imposed changes to her employment in the form of reduced shifts and hours, and is also terminated for no other reason but for her pregnancy.[7]

Many women who are or who may become pregnant fear that their employers will respond negatively to their pregnancy. This often results in women experiencing considerable stress. In many cases their fears are borne out and they lose their jobs. As well, women who are breastfeeding often face negative attitudes from employers, or when using services or facilities, and may face difficulty getting appropriate accommodation that will allow them to breastfeed their children. Pregnant women may be disadvantaged in their search for housing because landlords do not want children in their buildings, believing that children are noisy, destructive and disruptive. “Adult-only” housing continues to be widespread even though it is not allowed under the Code.

This policy sets out the OHRC’s position on discrimination based on pregnancy and breastfeeding at the time of publication. It deals primarily with issues that fall within the jurisdiction of the Ontario Code, and which can form the subject matter of a human rights claim. At the same time, the policy interprets the protections of the Code in a broad and purposive way, consistent with the principle that the quasi-constitutional status of the Code requires that it be given a liberal interpretation that best ensures its anti-discriminatory goals are met.

OHRC policies contribute to creating a culture of human rights in Ontario. This policy can help the public understand the Code protections against discrimination and harassment because of pregnancy and breastfeeding. It is also designed to help individuals, employers, organizations, providers of services and housing, and policy-makers to learn their responsibilities and the actions they need to take to make sure they comply with the Code. 

The analysis and examples used in the policy are based on the OHRC’s research, international standards, human rights claims, and tribunal and court decisions. For more information on the purpose of OHRC’s policies, see Appendix A.

[2] The case law recognizes the unique discrimination that women may face due to their capacity to become pregnant. This policy therefore focuses on the experience of women and uses the personal pronouns “she” and “her” throughout. However, trans or gender diverse people who may not identify as “female,” but whose sex assigned at birth was “female,” may have reproductive systems that permit pregnancy and breastfeeding. Also, some trans or gender diverse people whose sex assigned at birth was “male” can breastfeed. See Rainbow Health Ontario, Reproductive Options for Trans People: Fact Sheet online: Rainbow Health Ontario www.rainbowhealthontario.ca/admin/contentEngine/contentDocuments/Reproductive_Options__for_Trans_People.pdf. “Trans” is an umbrella term that describes people with diverse gender identities and gender expressions that do not conform to stereotypical ideas about what it means to be a girl/woman or boy/man in society. “Trans” can mean transcending beyond, existing between, or crossing over the gender spectrum. It includes but is not limited to people who identify as transgender, transsexual, cross dressers or gender non-conforming (gender variant/gender queer/gender diverse). “Gender diverse” means people who do not follow gender stereotypes based on the sex they were assigned at birth. They may identify and express themselves as “feminine men” or “masculine women” or as androgynous, outside of the categories “boy/man” and “girl/woman.” They may or may not identify as trans. For a discussion on how discrimination based on gender identity and gender expression intersect with sex and pregnancy, see section 3.3 Pregnancy, Gender Identity and Gender Expression. See also Ontario Human Rights Commission (OHRC) Policy on preventing discrimination because of gender identity and gender expression (2014), online: OHRC www.ohrc.on.ca/en/policy-preventing-discrimination-because-gender-identi....

[3] For a detailed analysis of court and tribunal decisions relating to discrimination based on pregnancy and breastfeeding since 2008, see OHRC Human rights obligations related to pregnancy and breastfeeding: Case law review (2014), online: OHRC www.ohrc.on.ca/en/human-rights-obligations-related-pregnancy-and-breastfeeding-case-law-review.

[4]Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 at 1243.

[5] 16 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No. 46 (entered into force 03 September 1981, accession by Canada 19 May 1976).

[6] 18 December 1979, 1249 U.N.T.S. 13, Can. T.S. 1982 No. 31 (entered into force 03 September 1981, accession by Canada 09 January 1982).

[7]Bickell v. The Country Grill (No.4), 2011 HRTO 1333 (CanLII) at para. 40 and again in Graham v. 3022366 Canada Inc., 2011 HRTO 1470 (CanLII) at paras. 49-50.