In 1979 the Supreme Court of Canada ruled that pregnancy discrimination was not gender discrimination. It took a decade for the Court to correct this position.
Today, the Human Rights Code clearly states that pregnancy discrimination is illegal sex discrimination, and the Employment Standards Act reinforces this rule against discrimination by expressly requiring employers to reinstate employees after maternity leave in most cases. Similar laws exist in each province and territory, and federally.
However, maternity leave firings and pregnancy discrimination persist in Canadian workplaces. In fact, as a human rights lawyer, most cases I handle have some connection to a pregnancy, parental leave or childcare issues. Single parents, young mothers and newcomers are often vulnerable to the most blatant discrimination, but all types of parents can encounter trouble.
In one of my files, a mother of three alleges that she was illegally fired just 10 days after the birth of her child. She claims that her employer told her that she was being dismissed in part because she’d taken maternity leave ‘early’. She says she took leave earlier than planned due to medical complications on the advice of her doctor, as is her right. We’re awaiting the employer’s Statement of Defence.
Sadly, this is a familiar story in Canadian workplaces. According to the Ontario Human Rights Commission (the “OHRC”), gender discrimination is the second most common type of discrimination reported in this province. In fact, 26% of women surveyed reported some kind of sex discrimination.
The report doesn’t differentiate between pregnancy-related discrimination and other forms of sex discrimination, but previous studies in other Canadian jurisdictions have shown that pregnancy discrimination allegations make up a startling proportion of all human rights complaints in our country. For example, in 2009 the Manitoba Human Rights Commission reported that 67% of all sex discrimination cases it received that year were related to pregnancy.
If you’re surprised to hear this, it might be because we don’t like to talk about it. The same OHRC report found that nearly half of people who experienced discrimination didn’t share their story with others.
Through personal experience and speaking with my clients, I know this silence comes in large part from a place of unnecessary embarrassment. Women worry that workplace discrimination reflects poorly on them, especially if they choose not to fight back. They worry that admitting to job loss at all will diminish their reputation in their field and harm their job prospects. Unfortunately, this leaves women feeling alone when they find themselves with a new baby and no job.
The Impact of Maternity Leave Discrimination
Mothers who lose their jobs or lose out on pay due to a maternity leave face significant financial challenges. Unlike other employees facing job loss, these workers may not be able to access Employment Insurance benefits because their parental leave has prevented them from accruing insurable hours in the year leading up to their dismissal. Since young parents often lack significant service in their positions, they may be offered only a small severance package—if they’re offered any compensation at all. A financial hit like this just as your family begins to grow can be terrifying.
The household budget crisis is stressful but, ideally, it’s temporary, and a new mom will find a new job in short order. However, the impact on women’s careers can be long-lasting.
Even women who do find a job waiting for them after their leave may encounter problems when they return to work. These indignities range from the illegal alteration of their terms and conditions of employment or reductions in salaries to more subtle experiences like unspoken stereotyping and the loss of clients or mentors. Women often complain that, in contrast with male colleagues, they find themselves on the “mommy track” instead of the “partner track” or “tenure track”, regardless of their personal ambitions.
Since I began working in this area as a law student, I’ve observed that many women leave their career of choice permanently, or at least long-term, after facing this kind of discrimination. They frequently opt to pursue work in more woman-friendly jobs including pink-collar positions, government work or part-time employment. While this provides them more respect on the job, they usually get paid less. And women’s absence from their chosen professions slows our fight for equality in male-dominated fields.
Women remain underrepresented in STEM fields, and the highest-ranking law, business, and government positions. While there are lots of factors contributing to the lack of gender balance in these arenas, in my view it’s due in no small part to the mothers we lose or hold back through discrimination.
This Mother’s Day weekend, please do more than buy the moms in your life flowers. Consider checking in over that delicious holiday brunch and asking how things are going at work. And if you are a mom who’s been unfairly fired, consider speaking out.