Policy on discrimination because of pregnancy and breastfeeding
I. Introduction
The Ontario Human Rights Code (the “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 provisions of the Code are aimed at creating 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 is, was, or may become pregnant or because she has had a baby.
Child-bearing benefits society as a whole. Thus, women should not be disadvantaged as a result of being 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.” [1]
Several international agreements and conventions to which Canada is a party contain provisions with respect to 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 such a period, working mothers should be accorded paid leave or leave with adequate social security benefits.[2] 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. [3] These covenants recognize the social significance of motherhood, and require state parties to ensure a proper understanding of maternity as a social function and to take steps to ensure that 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, unfortunately, discrimination against women because of pregnancy continues to be a common practice in society, particularly in employment. Many women who are, or may become, pregnant fear that their employers will respond negatively to their pregnancy. This often results in these women experiencing considerable stress and 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 experience difficulty in securing appropriate accommodation that will allow them to nurse 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 prevalent despite the clear prohibitions of the Code.
This Policy sets out the Ontario Human Rights Commission’s (the “Commission’s”) position on discrimination on the basis of pregnancy and breastfeeding at the time of publication, and replaces the version of the Policy approved by the Commission in 2001. This Policy deals primarily with issues that fall within the jurisdiction of the Code, and which can form the subject matter of a human rights claim.[4] At the same time, the Policy interprets the protections of the Code in a broad and purposive manner, 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 attained.
Commission policy statements contribute to creating a culture of human rights in Ontario. This Policy is intended to help the public understand the Code protections against discrimination and harassment because of pregnancy and breastfeeding. It is also meant to assist individuals, employers, organizations, providers of services and housing, and policy-makers in understanding their responsibilities and acting appropriately to ensure compliance with the Code.
The analysis and examples used in the Policy are based on the Commission’s research, international standards, human rights claims, and tribunal and court decisions.
[1] Brooks v. Canada
Safeway Ltd., [1989] 1 S.C.R. 1219 at para. 40 [hereinafter
Brooks].
[2] 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).
[3] 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).
[4] Bill 107, An Act to amend the
Human Rights Code, was passed in December 2006. Since June 30,
2008, human rights claims are filed directly with the Human Rights Tribunal of
Ontario. Prior to this time, complaints were filed with the Ontario Human
Rights Commission.
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