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In most workplaces, the news of a pregnant employee is often greeted with excitement, support and the occasional baby shower. There are instances, however, when the employer responds in an adverse or unlawful manner. In those cases, human rights tribunals have the authority to enforce a pregnant employee’s right to equal treatment, and are often prepared to send a strong message to employers that this type of discrimination is entirely unacceptable.

The Ontario Human Rights Code requires equal treatment in employment and prohibits discrimination on the basis of sex, including pregnancy.

In a recent case, AM v. Local Heroes Stittsville, the Ontario Human Rights Tribunal addressed allegations that the bar fired a pregnant waitress after she refused to wear tight, form-fitting lycra shirts and pants during her shift. The new dress code was implemented by new management, apparently in an effort to re-brand the local bar and attract a younger clientele. Following the waitress’ refusal to wear the tight fitting clothing while pregnant, the manager “failed” to schedule the waitress for subsequent shifts. The manager claimed that there was a lack of work, despite having hired additional staff during that time. Her employment was subsequently terminated.

The Tribunal found that the manager had discriminated against the waitress because of her pregnancy by refusing her any additional shifts, and then terminating her employment. The new uniform was intended to boost the “sexual attractiveness” of the wait staff in order to attract business. The manager’s explanations about scheduling were not credible. Rather, the reason for the differential treatment was the waitress’ reluctance to wear the tight-fitting clothing during her pregnancy.

The Tribunal awarded the employee payment of lost income for the period from her last shift to the birth of her child, and $17,000.00 for injury to her dignity, feelings, and self-respect. The manager was directly liable to pay, and the bar was also vicariously responsible for his actions.

It is clear from this decision and others that human rights tribunals will not tolerate discrimination against pregnant employees. This type of discrimination is considered particularly harsh, and significant damage awards will be ordered to address the substantial emotional impact that this behaviour can have.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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