Policy on discrimination because of pregnancy and breastfeeding
III. Code Protections For Pregnancy and Breastfeeding
The Supreme Court of Canada has stated that pregnancy cannot be separated from gender. Pregnancy discrimination is a form of sex discrimination simply because of the basic biological fact that only women have the capacity to become pregnant.[6] Section 10(2) of the Code states that “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.”
“Pregnancy” includes the process of pregnancy from conception up to the period following childbirth and includes the post-delivery period and breastfeeding.[7] It also includes discrimination against a woman because she is of childbearing age and may become pregnant.[8] The term “pregnancy” takes into account all the special needs and circumstances of a pregnant woman and recognizes that the experiences of women will differ.
Special needs can be related to circumstances arising from:
- miscarriage or stillbirth;[9]
- abortion;
- complications because of pregnancy or childbirth;
- conditions which result directly or indirectly from an abortion/miscarriage or stillbirth;
- recovery from childbirth;[10] or
- breastfeeding.
As noted above, pregnancy includes the post-natal period, which includes breastfeeding. Breastfeeding is a natural part of child-rearing, and so is integrally related to the ground of sex, as well as to family status. Numerous studies have demonstrated the benefits of breastfeeding for mothers, children, and their communities, in terms of physical and emotional health and development. Women should not be disadvantaged in services, accommodation or employment because they have chosen to breastfeed their children. Nor should women be harassed or subjected to negative treatment because they have chosen not to breastfeed their children. When this Policy refers to discrimination on the basis of pregnancy, it includes discrimination on the basis of breastfeeding.
Breastfeeding includes pumping or expressing milk, as well as nursing directly from the breast. Women choose to breastfeed their children for varying lengths of time, and should not be exposed to negative comments or treatment because, for example, they continue to breastfeed their toddlers.[11]
Sometimes women are discouraged by others from breastfeeding in public places because of concerns that it is indecent. Breastfeeding is really a health issue, and not one of public decency. Women should have the choice to feed their babies in the way that they feel is most dignified, comfortable and healthy.
[6] Brooks, supra, note 1 at para 38.
[7] The length of the post-delivery
period covered by human rights protections is dependent on the circumstances of
the mother: Alberta Hospital Association v. Parcels (1992),
17 C.H.R.R. D/167 (Alta. Q.B.); Parcels v. Red Deer General &
Auxiliary Hospital Nursing Home (Dist. No. 15) (1991), 15 C.H.R.R. D/257
(Alta. Bd. of Inq.) [hereinafter Parcels].
[8] Wiens v. Inco Metals
Co. (1988), 9 C.H.R.R. D/4795 (Ont. Bd Inq.). The employer refused to
employ women of childbearing age in an area of its plant where there was a risk
of accidental emissions of nickel carbonyl gas, which could harm a fetus. The
Board of Inquiry found that this policy was discriminatory; it restricted
opportunities for all women who had the potential to become pregnant, and a
fetus could be adequately protected in other ways.
[9] In a British Columbia Human Rights
Tribunal decision, Tilsley v. Subway Sandwiches (2001), 39
C.H.R.R. D/102 (B.C.H.R.T.), a woman was fired for not showing up at work when
she was in hospital because of a miscarriage. The Tribunal ruled that
discrimination because of a miscarriage is one form of discrimination because of
sex, and that the employer had a duty to accommodate the employee’s
pregnancy, which included her miscarriage, to the point of undue hardship.
[10] “Pregnancy” is
understood to extend beyond the date of delivery and post-delivery recovery,
which is included in the definition of “pregnancy”. The length of
time is dependent on the circumstances of the mother. See further
Parcels, supra, note 7.
[11] It is worth noting that the
World Health Organization recommends that infants be exclusively breastfed for
the first six months of their lives, and continue breastfeeding together with
receiving complementary foods until two years of age, or beyond. For more
information, see http://www.who.int/topics/breastfeeding/en.
The full text of the Innocenti Declaration on the Promotion, Protection and
Support of Breastfeeding can be located at http://www/unicef.org/programme/breastfeeding/innocenti.htm.
| << Previous | Next >> | |
| First page | Last page | |
| Table of contents | |