The Code provides that every person has the right to be treated equally without discrimination because of pregnancy in the social areas of employment; housing accommodation; services, goods and facilities; contracts; and membership in unions, trade and professional associations. The purpose of human rights laws is to prevent the violation of human dignity by removing barriers and making sure that every person has equal opportunity to live his or her own life without being hindered by discrimination.
A woman experiences discrimination in a social area when she experiences negative treatment or impact, intentional or not, based on her pregnancy. Discrimination includes any distinction, including any exclusion, restriction or preference based on pregnancy, that impairs the recognition of human rights and fundamental freedoms.
To establish prima facie discrimination (discrimination “on its face”) under the Code, a claimant must show that:
- They have a characteristic protected under the Code (e.g. pregnancy)
- They experienced adverse treatment or impact within a social area (i.e. with respect to a service, employment, housing, etc.), and
- The protected characteristic was a factor in the adverse treatment or impact.
The most important issue to determine is whether pregnancy was a factor in the negative treatment or impact. 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, prima facie discrimination will be found.
Once prima facie discrimination is established, the burden then shifts to the organization or person responsible to either provide a credible non-discriminatory explanation, or justify the conduct or practice using one of the defences available under the Code (also see sections 5 and 6, Reasonable and bona fide requirements and the Duty to accommodate for more information).
4.1. Direct, indirect and subtle discrimination
Discrimination can take many forms. It may be direct and overt, 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, because it does not allow breastfeeding on the premises, or an employer may dismiss a pregnant employee because of stereotypes that pregnant women cannot do their jobs.
If a woman claims she was treated negatively because of pregnancy and there is reason to believe that the organization or person may not have known she was pregnant, the woman may have to show that the organization or person knew or ought to have known of the pregnancy.
Example: A woman who was six weeks pregnant was employed as a telemarketer for less than a month when she resigned during a training session. She alleged that the trainer made remarks that she used the washroom too often and ate too much, and that this indicated that the trainer did not want a pregnant woman working for the company. However, the woman said she had not told the trainer or anyone in management about her pregnancy. The HRTO concluded that there was no discrimination. In this case, the pregnancy was not obvious at six weeks and the woman had not established that the employer knew or ought to have known that she was pregnant.
Discrimination may also happen indirectly. It may be carried out through another person or organization.
Example: A company contracting services from a temp agency takes on a worker who later tells the employer she is pregnant. The company tells the agency not to send any more female workers who look like they are pregnant or are of child-bearing age.
Both the organization and person who sets out discriminatory conditions, and the organization or person who carries out this discrimination, can be named together in a human rights claim and held jointly responsible.
Example: A new employee notified her manager after one week of employment that she was pregnant. Not long afterwards, her employment was terminated. The employer claimed the employee was fired due to performance issues. The HRTO found that while there may have been some performance issues, the decision to terminate the employee was significantly influenced by the employee’s pregnancy because the employer felt it would not be worthwhile to train her before she started her leave.
Individual acts themselves may be ambiguous or explained away. But when viewed as part of a larger picture, they may lead to a conclusion that discrimination because of pregnancy was a factor in the treatment of a person. An inexplicable departure from the usual practices may support a claim of discrimination. Criteria applied to some people but not others may also be evidence of discrimination, if it can be shown that pregnant and breastfeeding women were singled out for negative treatment.
The cumulative effect of both overt and subtle discrimination is profoundly damaging to people who experience it.
4.2. Harassment and poisoned environments
The Code prohibits harassment because of sex (which includes pregnancy and breastfeeding). In addition to the Code’s explicit protection against harassment in housing and employment, harassment is also prohibited in services, goods and facilities, contracts, and membership in unions, trade and vocational associations.
The Code defines harassment as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” Harassment will have happened if the person carrying out the behaviour knew or should have known it was unwelcome. If the victim says the behaviour is unwelcome then the harasser “knows.” If the harasser didn’t know (or didn’t intend to harass), it is still harassment if a “reasonable” person would know such behaviour is unwelcome. What is considered “reasonable” includes the perspective of pregnant women.
Victims do not have to explicitly or directly object to harassment. They may feel vulnerable and may not speak out because of a threat or fear or because the person has some power or authority over them, like a manager or landlord. Some may simply withdraw or walk away.
Employers, landlords and service providers have an obligation to maintain an environment that is free of discrimination and harassment, whether or not anyone objects.
Example: A woman advised she was pregnant during a job interview. She was hired to work at a store, but during her training period her supervisor made various comments, such as that she should not have been hired because she was pregnant. The supervisor also expressed concern about the employee’s ability to “handle” the work while pregnant, and asked questions about whether she had taken the job to get pregnancy leave benefits. The supervisor insisted the employee tuck in her shirt although this was difficult because of her pregnancy. The HRTO found that this was harassment based on sex and pregnancy.
Pregnancy-related harassment may take a variety of forms, including:
- 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
- Resentful comments about a woman’s pregnancy
- Negative comments about the impact of a woman’s impending maternity leave on the workplace, or the fact that she has been pregnant more than once while working at the same job
- Negative comments about a pregnant woman’s capacity to work or be in the workplace.
Example: Once a female employee tells her manager and co-workers that she is pregnant with her first child, she is often told 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 refer to a woman’s pregnancy. For example, in employment, if a woman who is pregnant experiences 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.
A poisoned environment is also a form of discrimination that can happen in employment, housing or services. A poisoned environment may happen when unwelcome comments and conduct are ongoing or widespread throughout an organization. This can lead to a hostile or oppressive atmosphere for one or more people from a Code-protected group.
While ongoing exposure to harassment can be a factor, a poisoned environment is based on the nature of the comments or conduct and the impact on an individual or group rather than just on the number of times the behaviour happens. Even a single statement or incident, if sufficiently serious and substantial, can create a “poisoned environment.” Behaviour need not be directed at any one person to create a poisoned environment. A person can experience a poisoned environment even if he or she is not a member of the group that is the target.
Example: In front of other women at a public pool, a staff member tells a woman she is “being disgusting” for breastfeeding her child. The comment results in a poisoned service environment for the breastfeeding woman, and it can poison the environment of the other women as well, regardless of whether they have children.
Not addressing discrimination and harassment may in itself cause a poisoned environment. The result of a poisoned environment is that certain people or groups, such as pregnant women, face negative terms and conditions of employment, tenancy or services that other people do not experience.
4.3. Systemic discrimination
Discrimination is not always just between individuals. It can be more complex and “systemic,” embedded in patterns of behaviour, policies and practices that are part of the administrative structure or informal “culture” of an organization, institution or sector. It can be hidden to the people who don’t experience it. It can create or perpetuate a position of relative disadvantage for women who are, have been or may become pregnant. These behaviours, policies or practices sometimes appear neutral on the surface but can have an adverse or negative effect, creating or continuing disadvantage and limiting rights and opportunities because of pregnancy.
Example: An employer has a policy that after three years of continuous service, a term appointment converts into an indeterminate one. However, the policy excludes unpaid leaves of greater than 60 days (including maternity and parental leaves) when calculating continuous service. While on its face, this “continuous service” policy may appear to be neutral, it has an adverse effect on women who, more often than men, have gaps in their employment due to maternity and parental leaves.
Systemic discrimination may include aspects of overt as well as adverse effect discrimination that overlap and compound the problem.
In employment, the culture and structure of some organizations and sectors may not be designed to take into account employees’ needs related to caring for infants or young children. Workplaces that do not recognize these needs can effectively bar women from equal opportunities and advancement, and can lead to them not entering or leaving the profession altogether. Depending on the circumstances, these barriers may amount to systemic discrimination.
Organizations and institutions have a positive obligation to make sure they are not engaging in systemic discrimination. They should prevent barriers by designing policies and practices inclusively up front. They should also review their systems and organizational culture regularly and remove barriers where they exist.
Organizations and sectors that have low representation of women, particularly in leadership positions, should look at their organizational policies and cultures to see if they are creating barriers to pregnant women and employees with caregiving responsibilities.
Where an organization believes or has reason to believe that discrimination, systemic barriers or the perpetuation of historical disadvantage may potentially exist, it is the OHRC’s position that it should collect and analyze data. In addition, whether or not formal data collection has taken place, an organization or institution must be conscious of issues of representation and cannot choose to remain unaware of disparities that exist.
Organizations must also address new problems when they come up. To the greatest extent possible, this means changing policies and practices to include and accommodate more people instead of merely making exceptions for people who don’t “fit” in the existing system.
Establishing a special program is one way to address systemic discrimination and enhance equality.
Example: Research shows that female lawyers who are sole practitioners or are in very small firms experience multiple barriers if they take time away from their practice to have children. These lead many women to leave their practice. To help solve this issue, a law society offers a fund for men and women who are parents for up to 12 weeks to cover expenses relating to their law practice during a maternity, parental or adoption leave.
The Code protects people if they experience reprisal or threats of reprisal. A reprisal is an action, or threat, that is intended as retaliation, punishment or “payback” for claiming or enforcing a right under the Code. However, there is no strict requirement that someone who alleges reprisal must have already made an official complaint or application under the Code. Also, to prove reprisal, a person does not have to show their rights were actually infringed.
Example: In a human rights claim against her employer, a woman alleged that she was forced to take an unpaid leave due to her pregnancy. The woman and the employer settled this claim. Three weeks after the settlement was reached, the employer sent a letter to Human Resources Development Canada saying that the woman was dismissed due to “recent litigation” (meaning the human rights claim) and that the employment relationship was negatively affected to the point that it would not be possible to continue her employment. The HRTO found that this was reprisal and violated the Code.
 The Supreme Court of Canada has described discrimination in the context of equality claims under s. 15 of the Canadian Charter of Rights and Freedoms as a distinction based on a prohibited ground that has the “effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society;” Andrews v. Law Society of British Columbia,  1 S.C.R. 143 at 174.
 Moore v. British Columbia (Education),  3 S.C.R. 360.
 In Dhillon v. Planet Group, 2013 BCHRT 83 (CanLII), the BCHRT accepted that performance problems were a factor in the employer’s decision to terminate a woman’s employment, but so was the announcement of her pregnancy. In this case, the employers did not formally address performance concerns with the claimant before terminating her employment. See also Guay v. 1481979 Ontario Inc. (No. 3) (2010), CHRR Doc. 10-2213, 2010 HRTO 1563 (CanLII); 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.).
An organization might learn of a woman’s pregnancy because she tells them directly, or it may be obvious due to the circumstances. In several instances, the HRTO and other human rights tribunals have found, based on the evidence and credibility of the witnesses, that the employer did not know and had no way of knowing that the employee was pregnant (or trying to become pregnant) when the decision to terminate her employment was made. See King v. S.P. Data Capital, 2012 HRTO 500 (CanLII); Sloan v. Just Energy Corp. (No. 2), 2012 HRTO 127 (CanLII); Aujla v. BJS Sales Marketing Inc., 2010 HRTO 966 (CanLII).
 In King, ibid., the HRTO noted that comments about eating too much or using the washroom could, in some circumstances, be related to the physical effects of pregnancy and might form part of the evidence in a case of discrimination based on pregnancy. However, in this instance the applicant did not establish that such remarks were made. See also Weimer v. Richards Packaging Inc. (2008), CHRR Doc. 08-536 (Alta. H.R.P.); Burgess v. Stephen W. Huk Professional Corp. (2009), 69 C.H.R.R. D/1 (Alta. H.R.T.), 2010 ABQB 424 (CanLII).
 Guay, supra note 39; Comeau v. Community Solutions Ltd., 2010 HRTO 1391
 See Johnson v. Halifax Regional Police Service (2003), 48 C.H.R.R. D/307 (N.S. Bd.Inq.) at para. 57 for an example of a case where deviations from normal practice supported a finding of racial discrimination.
 The HRTO has confirmed that the Supreme Court of Canada has said that harassment is a form of discrimination (see Janzen v. Platy Enterprises Ltd.,  1 S.C.R. 1252). Therefore, even in the absence of a specific prohibition on harassment in services, contracts etc., the Code applies; Haykin v. Roth, 2009 HRTO 2017 (CanLII).
 In Murchie v. JB’s Mongolian Grill, 2006 HRTO 33 (CanLII), the HRTO found that a serious single incident could constitute harassment. However, more often a single incident is treated as a form of discrimination, see e.g. Romano v. 1577118 Ontario Inc., 2008 HRTO 9 (CanLII) and Haykin, ibid.
 See Reed v. Cattolica Investments Ltd. and Salvatore Ragusa,  O.H.R.B.I.D. No. 7. See also, Gregory v. Parkbridge Lifestyle Communities Inc. 2011 HRTO 1535 (CanLII) at para. 87 citing Ghosh v. Domglas Inc. (No. 2) (1992), 17 C.H.R.R. D/216 (Ont. Bd. Inq.) at paras. 43 to 48 and Dhanjal v. Air Canada, 1996 CanLII 2385 at p. 50 (CHRT).
 In Harriott v. National Money Mart Co., 2010 HRTO 353 (CanLII) at para.104, the HRTO found that the respondent’s continued sexualized and inappropriate comments and conduct were unwelcome in the workplace. The HRTO, citing earlier case law, also confirmed that a person is not required to protest or object to the harassing conduct for discrimination to be found (at para. 108).
 Arunachalam v. Best Buy Canada Ltd., 2010 HRTO 1880 (CanLII).
 In Shinozaki, supra note 17, the HRTO found that the applicant was subjected to a course of vexatious comments and conduct related to changes to her body during pregnancy, including that she looked “fat” and “ugly,” as well as comments about her “body tone” (at paras. 9, 12, & 49); Peart, supra note 17.
 In Shinozaki, supra note 17, the applicant was subjected to a comment that, as a pregnant woman, she “should not be in the workforce but rather convalescing at home.” The HRTO found that this was “clearly based on a negative stereotype about pregnant women not belonging in the workplace,” (at para. 31). In Vaid v. Freeman Formal Wear, 2009 HRTO 2273 (CanLII), the applicant’s supervisor, after finding out she was pregnant, questioned her ability to perform the job and whether the company would be liable if she slipped and fell on the way to work in the winter. Although not specifically framed as a harassment or poisoned environment claim, the HRTO found that the supervisor was signaling to the applicant that her pregnancy was not welcome in the workplace, thereby creating an unwelcome and discriminatory work environment,
in violation of the Code.
 In employment, tribunals have found that the atmosphere of a workplace is a condition of employment as much as hours of work or rate of pay. A “term or condition of employment” includes the emotional and psychological circumstances of the workplace. A poisoned environment can also happen in housing and services. Smith v. Menzies Chrysler Inc.,  O.H.R.T.D. No. 1906 (QL); Dillon v. F.W. Woolworth Co. (1982), 3 C.H.R.R. D/743 at para 6691 (Ont. Bd. Inq.); Naraine v. Ford Motor Co. of Canada (No. 4) (1996), 27 C.H.R.R. D/230 at para. 50 (Ont. Bd. Inq.).
 See Moffatt v. Kinark Child and Family Services (No. 4) (1998), 35 C.H.R.R. D/205 (Ont. Bd. Inq.) and Kharoud v. Valle-Reyes (2000) BCHRT 40. In Dhanjal, supra note 46, the tribunal noted, “In short, the more serious the conduct the less need there is for it to be repeated, and, conversely, the less serious it is, the greater the need to demonstrate its persistence in order to create a hostile work environment…” (at p. 50).
 McKinnon v. Ontario (Ministry of Correctional Services),  O.H.R.B.I.D. No. 10.
 In Gilmar, supra note 16, the Canadian Human Rights Tribunal found that the respondent school board’s policy of deliberately offering one-year contracts, in part to get around its obligations to employees who may be pregnant, was discriminatory.
 In Moore, supra note 38, the Supreme Court of Canada reaffirmed its earlier definition of systemic discrimination set out in its seminal 1987 decision Canadian National Railway Co. v. Canada (Human Rights Commission),  1 S.C.R. 1114 at p. 1138-1139 as, “practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or a group’s right to the opportunities generally available because of attributed rather than actual characteristics.” The OHRC uses “systemic discrimination” when referring to individual organizations, institutions or a system of institutions, that fall under the jurisdiction of the Code (e.g. the education system).
 In Lavoie v. Canada (Treasury Board) (No. 2) (2008), CHRR Doc. 08-379, 2008 CHRT 27, the Canadian Human Rights Tribunal found that such a policy was discriminatory based on sex. The CHRT rejected the argument that excluding parental leave did not discriminate against women as men were entitled to parental leave as well. The evidence established that, in practice, persons taking parental leave greater than 60 days were predominantly women.
 Pivot Legal Society v. Downtown Vancouver Business Improvement Assn. (No. 6) (2012), CHRR Doc. 12-0023, 2012 BCHRT 23, at para. 581: “To summarize, I find that systemic discrimination, like individual discrimination, may include components of direct, as well as adverse effect discrimination.”
 For example, many female lawyers are systemically disadvantaged in private practice, in part because having and caring for children conflicts with the structure of the profession. This leads a disproportionate number of women to leave the profession, compared to men. See Final Report – Retention of Women in Private Practice Working Group (2008), online: Law Society of Upper Canada, lsup1.hosted.exlibrisgroup.com:1702/primo_library/libweb/action/display.do?tabs=moreTab&ct=display&fn=search&doc=EKTRON397_en&indx=2&recIds=EKTRON397_en&recIdxs=1&elementId=1&renderMode=poppedOut&displayMode=full&frbrVersion=&dscnt=1&vl(1UI0)=contains&scp.scps=scope%3A%28EKTRON%29&frbg=&tab=default_tab&dstmp=1404487708897&srt=rank&mode=Basic&dum=true&vl(freeText0)=final+report+retention&vid=LSUCEKTRON. See also Ruth Montgomery, Gender Audits in Policing Organizations (2012), online: Status of Women Canada www.swc-cfc.gc.ca/rc-cr/gapo-ebop/index-eng.html?pedisable=true; Royal Canadian Mounted Police, Gender and Respect: The RCMP Action Plan, online: RCMP www.rcmp-grc.gc.ca/gba-eces/action/index-eng.htm at 7-8.
 See the OHRC’s Count me in! Collecting human rights-based data (2010) for more information, at www.ohrc.on.ca/en/count-me-collecting-human-rights-based-data.
 For more information about the duty to accommodate see section 6 of this policy.
 British Columbia (Public Service Employee Relations Commission) v. BCGSEU,  3 S.C.R. 3 [“Meiorin”].
 Special programs are allowed under section 14 of the Code. A “special program” is designed to help people who experience hardship, economic disadvantage, inequality or discrimination and protects these programs from challenge by people who do not experience the same disadvantage. See the OHRC’s Your guide to special programs and the Human Rights Code (2013), online: OHRC www.ohrc.on.ca/en/your-guide-special-programs-and-human-rights-code.
 This example is based on The Law Society of Upper Canada’s (LSUC) Parental Leave Assistance Program. The Law Society of Upper Canada, Parental Leave Assistance Program, online: LSUC www.lsuc.on.ca/with.aspx?id=2147487024 (retrieved July 4, 2014).
 See “Reprisal”: section 8 of the Code. Also see section 7(3)(b) which prohibits reprisal for rejecting a sexual solicitation or advance, where the reprisal is made or threatened by a person
in a position to confer, grant or deny a benefit or advancement to the person.
 Noble v. York University, 2010 HRTO 878 (CanLII), 2010 HRTO 878, paras. 30-31, 33-34. Reprisal is established if:
- An action was taken against, or a threat was made to, the claimant
- The alleged action or threat was related to the claimant having claimed, or trying to enforce a Code right, and
- There was an intention on the part of the respondent to retaliate for the claim or the attempt to enforce the right.
 Chan v. Tai Pan Vacations Inc., 2009 HRTO 273 (CanLII). See also Bickell, supra note 7.