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2. Code protections for pregnancy and breastfeeding

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The Supreme Court of Canada has recognized that pregnancy cannot be separated from sex. It stated, “Discrimination on the basis of pregnancy is a form of sex discrimination because of the basic biological fact that only women have the capacity to become pregnant.”[8] 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 trying to become pregnant and pregnancy from conception up to the period following childbirth. It includes the post-delivery period and breastfeeding.[9] It also includes discrimination against a woman because she is of childbearing age and may become pregnant.[10] 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.

Discrimination because of pregnancy and breastfeeding includes discrimination because a woman:

  • Is trying to get pregnant, was pregnant or states she is intending to have a child
  • Will be taking a maternity leave[11]
  • Has an abortion or experiences complications related to an abortion[12]
  • Has a miscarriage (or stillbirth)[13] or experiences complications related
  • to miscarriage (or stillbirth)[14]
  • Experiences complications related to pregnancy[15] or childbirth
  • Lacks energy due to pregnancy[16]
  • For reasons related to her appearance while pregnant such as looking “too big,” “fat” or being unable to wear a form-fitting uniform.[17]
  • Is recovering from childbirth[18]
  • Is receiving fertility treatments
  • Is 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. Many studies have shown the benefits of breastfeeding for mothers, children
and their communities, in terms of physical and emotional health and development.[19] Women should not be disadvantaged in services, housing or employment because they have chosen to breastfeed their children. Nor should they be harassed or subjected to negative treatment because they have chosen not to breastfeed their children. When this policy refers to discrimination based on pregnancy, it includes discrimination based on breastfeeding.

Breastfeeding includes pumping or expressing milk, as well as nursing directly from the breast. Women may 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.[20]

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 they feel is most dignified, comfortable and healthy.

[8] Brooks, supra note 4 at 1242.

[9] The length of the post-delivery period covered by human rights protections depends 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.).

[10] In 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. 

[11] In Charbonneau v. Atelier Salon & Spa, 2010 HRTO 1736 (CanLII) at para. 12, the HRTO noted, “Maternity leaves flow so directly from pregnancy and giving birth that treating a woman differently because she plans to take a maternity leave amounts to discrimination because of sex.”

[12]Chohan v. Dr. Gary W. Lunn Inc., 2009 BCHRT 448 (CanLII).

[13] 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 for 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 her pregnancy, which included her miscarriage, to the point of undue hardship.

[14]Osvald v. Videocomm Technologies Inc. (No. 1), 2010 HRTO 770 (CanLII); Ford v. Adriatic Bakery, 2010 HRTO 296 (CanLII). In Ford, the HRTO rejected the employer’s argument that a woman who was fired after she had a miscarriage could not have experienced discrimination based on pregnancy because she was no longer pregnant when her employment was terminated. The HRTO agreed with the OHRC’s 2008 Policy on discrimination because of pregnancy and breastfeeding (Policy) and confirmed that discrimination or harassment related to pregnancy includes discrimination or harassment related to the complications of pregnancy, including the end of the pregnancy. 

[15]Ford, ibid. The HRTO has not required a woman to provide medical evidence proving that physical problems that coincide with pregnancy are caused by the pregnancy; see Purres v. London Athletic Club (South) Inc., 2012 HRTO 1758 (CanLII) at para. 4. This is consistent with the OHRC’s statement in its 2008 Policy that: “Pregnant women should not be required to provide documentation of changes that are normal and natural to any pregnancy, such as the need for more frequent washroom breaks, or a reduction in the ability to stand for lengthy periods of time in the later stages of pregnancy, or the need to attend regular medical appointments.”

[16]Gilmar v. Alexis Nakota Sioux Nation Board of Education, 2009 CHRT 34 (CanLII).

[17] In Peart v. Distinct HealthCare Services Inc., 2013 HRTO 305 (CanLII), the HRTO found that the employer had concerns with how the applicant was dressing during her pregnancy and offered to buy her maternity clothes. As well, a manager remarked that the applicant was “looking big” in the context of suggesting that she start her maternity leave early. Therefore, the HRTO found that looking pregnant, and her pregnancy clothing, were factors in the decision to terminate the applicant’s employment. In Shinozaki v. Hotlomi Spa, 2013 HRTO 1027 (CanLII), the employer made several highly offensive comments about the applicant’s appearance and physical attractiveness during her pregnancy. The employer’s stereotypical ideas about pregnant women led to a reduction in the applicant’s hours and number of clients and ultimately to the loss of her job. See also McKenna v. Local Heroes Stittsville, 2013 HRTO 1117 (CanLII) where a woman’s shifts were cut after expressing concern about wearing a new form-fitting uniform due to her visible pregnancy. The HRTO found that the respondents wanted to re-brand the sports bar by emphasizing the sexual attractiveness of its staff, and they saw the applicant’s visible pregnancy as inconsistent with their
re-branding efforts.

[18] “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 depends on the mother’s circumstances. See further Parcels, supra note 9.

[19] See for example, Bernardo L. Horta, et al., Evidence of the long-term effects of breastfeeding: Systematic reviews and meta-analyses (2007) online: World Health Organization; Maternal, newborn, child and adolescent health: Breastfeeding online: World Health Organization (retrieved June 12, 2014).

[20] Note that the World Health Organization (WHO) 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 World Health Organization, “Breastfeeding” online: WHO (retrieved May 1, 2014). The full text of the Innocenti Declaration on the Promotion, Protection and Support of Breastfeeding, adopted by participants at the WHO/UNICEF policymakers’ meeting on “Breastfeeding in the 1990s: A Global Initiative,”  can be located at


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