Policy on discrimination because of pregnancy and breastfeeding

V. Forms of Discrimination Based on Pregnancy and Breastfeeding

The Code provides that every person has the right to be treated equally without discrimination because of pregnancy in the areas of employment; housing accommodation; services, goods and facilities; contracts; and professional and vocational associations. The purpose of anti-discrimination laws is to prevent the violation of human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice.

There are several ways of defining and identifying discrimination. Discrimination includes any distinction, including any exclusion, restriction or preference based on pregnancy, that results in the impairment of the recognition of human rights and fundamental freedoms.^[17]

The most important issue to determine is whether pregnancy was a factor in the discrimination. Even if pregnancy or being of child-bearing age is only one of the factors in a decision to restrict a woman’s equal access to employment, housing or services, this may constitute a violation of the Code.^[18]

1. Discrimination Based on Negative Attitudes and Stereotypes

Discrimination can take many forms. It may be direct and intentional, where an individual or organization deliberately treats a woman differently because she is, was or may become pregnant. This type of discrimination usually arises from negative attitudes and biases, and is a common form of discrimination based on pregnancy. For example, a service provider may ask a breastfeeding mother to either stop breastfeeding or leave the premises, because it prohibits breastfeeding in its public areas, or an employer may dismiss a pregnant employee in order to avoid any inconveniences associated with her maternity leave.

2. Subtle Discrimination

In other cases, discrimination may be more subtle or covert. Intent or motive to discriminate is not a necessary element for a finding of discrimination – it is sufficient if the conduct has a discriminatory effect. Subtle forms of discrimination can usually only be detected upon examining all of the circumstances, as individual acts may be ambiguous or explained away.

Example: After a highly successful and valued female employee announces her pregnancy, she finds that her manager begins to find fault with her work and to require her to account minutely for her time. Her request to attend a high-profile annual business conference is denied. Her manager tells her that she needs to “really start demonstrating that she’s committed to success”. She begins to wonder whether her workplace problems are linked to her pregnancy.

3. Harassment and Poisoned Environments

The Code prohibits harassment because of sex (which includes pregnancy) in the occupancy of accommodation, and in employment. While the Code contains no explicit provisions dealing with harassment in the areas of services, goods and facilities, contracts, and membership in trade and vocational associations, it is the position of the Commission that harassment because of sex (pregnancy) in such situations would constitute a violation of the right to equal treatment without discrimination with respect to services, goods, facilities, contracts, and membership in trade and vocational associations.

Harassment is defined in section 10(1) of the Code as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” There is both a subjective and an objective component to harassment; that is, one must consider both the harasser’s own knowledge of how his or her behaviour is being received, as well as how a “reasonable” third party would generally view such behaviour. The determination of the point of view of a “reasonable” third party must take into account the perspective of the person who is harassed. It is important to note that there is no requirement that the individual have objected to the harassment at the time, in order for a violation of the Code to exist, or for a person to claim their rights under the Code. An individual who is the target of harassment may be in a vulnerable situation, and afraid of the consequences of speaking out. Employers, landlords, and service providers have an obligation to maintain an environment that is free of discrimination and harassment, whether or not anyone objects. Each situation must be assessed on its own merits.

In employment, for example, pregnancy-related harassment may take a variety of forms, including:

Resentful comments about the fact of a woman’s pregnancy, or the impact of her impending maternity leave on the workplace, or the fact that she has been pregnant more than once while working at the same job.
Repeated negative, demeaning, or paternalistic comments about a pregnant woman’s appearance, pregnancy symptoms, or capacity as a mother. Sometimes, a woman’s pregnancy is treated as license to make overly personal comments about her appearance or personal choices that would not otherwise be considered socially acceptable. For example, a pregnant woman may be subjected to frequent commentary about her weight, or her anticipated attitude towards work once she has had the baby.
Unwanted touching, commonly of a pregnant woman’s stomach.

Example: Once a female employee discloses her first pregnancy to her manager and co-workers, she is frequently advised that “she will not want to come back to work” and that “she will no longer be as driven about her work” once she has had her baby. She begins to worry that she will not be welcome back to work after her maternity leave, or that she will no longer be considered a valuable worker.

Harassment may not explicitly reference a woman’s pregnancy. For example, if a woman who is pregnant is subjected to groundless and repeated criticism of her work performance, or becomes the brunt of demeaning practical jokes and teasing that is not directed at other employees, this may be harassment because of her pregnancy.

While the definition of harassment refers to more than one incident of comment or conduct, even a single statement or incident, if sufficiently serious and substantial, can create a “poisoned environment”, in the sense that the individual is subjected to that environment experiences terms and conditions of employment, tenancy, services, etc., that are quite different from those experienced by individuals who have not been subjected to such comments or conduct. Where an individual is subjected to a poisoned environment, a denial of equality under the Code has occurred.

4. Institutional or Systemic Discrimination

Discrimination based on pregnancy may be systemic or institutional. Systemic or institutional discrimination consists of patterns of behaviour, policies or practices that are part of the social and administrative structures of an organization, and which create or perpetuate a position of relative disadvantage for women who are, have been, or may become pregnant. These may appear neutral on the surface, but nevertheless have an exclusionary impact on the basis of pregnancy.

Example: A top-performing and highly valued female employee applied for a promotion to a management position. She had worked for the same employer for almost ten years and her performance evaluations were always exceptional. Five years into her employment, she took a one-year maternity leave when her son was born. The employer, in deciding workplace promotions, places significant weight on “continuous service” as a job requirement. Consequently, in the employer’s view, the woman’s time away from the workplace while on maternity leave broke her continuity of service. She ended up losing the promotion to a more junior and less experienced male employee who had worked for 6 consecutive years. While, on its face, this “continuous service” policy may appear to be neutral, it will have an adverse effect on women who, more frequently than men, will have gaps in their employment due to parental leaves and childcare responsibilities.

5. Failure to Accommodate

One of the most common forms of discrimination based on pregnancy is the failure to accommodate needs related to pregnancy or breastfeeding. This most frequently arises with respect to employment, but may also occur in services or housing situations.

Example: Shortly after a woman started work as a sales associate, she became pregnant. She experienced nausea and fatigue. While she was able to complete her job duties, she needed to sit down to rest at times. She also experienced some problems with her pregnancy, which caused her some anxiety and required her to take some time off work, as well as reduce the length of her shifts. Her sales fell sharply during her pregnancy, and the employer terminated her employment, without considering the impact of her pregnancy and her reduced work hours on her performance. The Tribunal found that the employer had discriminated against the woman because of her pregnancy.^[19]

There may be circumstances where a decision, policy, practice or process results in discrimination based on pregnancy, but is nonetheless justified because it is reasonable and bona fide in the circumstances. The Supreme Court of Canada has set out a framework for examining whether a bona fide requirement has been demonstrated.^[20] If prima facie discrimination is found to exist, the person responsible for accommodation must establish on a balance of probabilities that the standard, factor, requirement or rule

was adopted for a purpose or goal that is rationally connected to the function being performed,
was adopted in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal, and

3. is reasonably necessary to accomplish its purpose or goal, in the sense that it is impossible to accommodate the claimant without undue hardship.^[21]

As a result of this test, the rule or standard itself must be inclusive and must accommodate individual differences up to the point of undue hardship rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them. This ensures that each person is assessed according to his or her own personal abilities instead of being judged against presumed group characteristics.^[22]

The ultimate issue is whether the person responsible for accommodation has shown that accommodation has been provided up to the point of undue hardship. In this analysis, the procedure to assess accommodation is as important as the substantive content of the accommodation.^[23]

The following non-exhaustive factors should be considered in the course of the analysis:^[24]

whether the person responsible for accommodation investigated alternative approaches that do not have a discriminatory effect;
reasons why viable alternatives were not implemented;
ability to have differing standards that reflect group or individual differences and capabilities;
whether persons responsible for accommodation can meet their legitimate objectives in a less discriminatory manner;
whether the standard is properly designed to ensure the desired qualification is met without placing undue burden on those to whom it applies; and
whether other parties who are obliged to assist in the search for accommodation have fulfilled their roles.

^[17] In keeping with the decision of the Supreme Court of Canada in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 174, discrimination based on pregnancy may be described as any distinction, conduct or action, whether intentional or not, but based on a woman’s pregnancy, which has the effect of either imposing burdens on an individual or group that are not imposed upon others, or withholding or limiting access to opportunity, benefits, and advantages available to other members of society. In the context of equality claims under s. 15 of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada offered the following three inquiries as a tool for determining whether discrimination has occurred:
1) Differential Treatment
Was there substantively differential treatment, either because of a distinction, exclusion or preference, or because of a failure to take into account the individual’s already disadvantaged position within Canadian society?
2) An Enumerated Ground
Was the differential treatment based on an enumerated ground, in this case pregnancy?
3) Discrimination in a Substantive Sense
Finally, does the differential treatment discriminate by imposing a burden upon, or withholding a benefit from, an individual? The discrimination might be based on stereotypes of a presumed group or personal characteristics, or might perpetuate or promote the view that an individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society who is equally deserving of concern, respect and consideration. Does the differential treatment amount to discrimination because it makes distinctions that are offensive to human dignity?
However, whether this test is appropriately applied to human rights legislation has not yet been settled in the caselaw.
^[18] Riggio v. Sheppard Coiffures Ltd. (1988), 9 C.H.R.R. D/4520 (Ont. Bd. Inq.); Stefanyshyn v. 4 Seasons Management Ltd. (4 Seasons Racquet Club) (1986), 8 C.H.R.R. D/3934 (B.C.C.H.R.).

^[19] Yap v. The Brick Warehouse, 2004 BCHRT 22, CHRR Doc. 04-049. See also Stackhouse v. Stack Trucking Inc. (No. 2), (2007), 60 C.H.R.R. D/119, 2007 BCHRT 161, in which a British Columbia Human Rights Tribunal found that a woman was discriminated against on the basis of pregnancy when her employer refused to accommodate her request, as per the advice of her physician, to work a 10 hour day (instead of her regular 11 ½ hour day).
^[20] British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3, at para. 54, [hereinafter Meoirin].
^[21] See Hydro-Québec v. Syndicat des employé-e-s de techniques preofessionnelles et de bureau d’Hydro-Québec, section locale 2000, (2008) SCC 43 for the Supreme Court of Canada’s recent comments on what the third part of this test means, in a practical sense, in the context of a disability accommodation in the workplace.
^[22] British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 at para. 20, [hereinafter Grismer].
^[23] Meoirin, supra, note 20 at para. 66.
^[24] Ibid, at para. 65.

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