What to do if You're Fired While Pregnant in Mississauga
Imagine being told you're no longer needed at your company when you're well into your pregnancy. Once the shock wears off—and the fear sets in—you need to know what to do (and what not to do).
First, don’t sign anything. Signing away your rights might result in everything else that we say in this article being completely out of reach for you.
Now that we’ve got that out of the way, what exactly does that law have to say about employers who terminate pregnant employees?
Ontario's Human Rights Code
In Ontario, the Human Rights Code states that every person has a right to equal treatment with respect to employment without discrimination because of several personal characteristics, including age, race, religion, sex, etc. Terminating a pregnant employee could (but not always) be considered discrimination with respect to employment on that basis of sex.
Indeed, there can be serious consequences to employers who commit this type of discrimination. In the case of In Marcotte v. Hair Xtacy Academy of Hair Design Inc., 2019 HRTO 348, that applicant was awarded $13,000 as monetary compensation for injury to dignity, feelings and self-respect after her employer was found to have discriminated against her on the basis of a sex, and she was terminated, in part, due to her pregnancy. Other cases have involved even higher awards.
Cases such as the above are heard at the Human Rights Tribunal of Ontario (“HRTO”). People who file cases with the HRTO often incorrectly refer to such proceedings as a human rights “complaint”. The HRTO does not receive “complaints” and people who bring such lawsuits are not “complainants”. The correct term is “application”, and if an application is brought in your name, then you are an “applicant”, and the person or company you sued is called a “respondent”.
It’s also important to keep in mind that there are many legal requirements that must be met by the applicant to establish a meritorious case.
The applicant has the onus (responsibility) of proving that the respondent violated her Code rights on a “balance of probabilities.” In other words, she must demonstrate that it is more likely than not that she was terminated because of her pregnancy. Clear, convincing and cogent evidence is required. However, the applicant does not need to prove that her pregnancy was the only factor leading to the termination or discriminatory conduct. Direct evidence of discrimination is also unnecessary, because discrimination will more often be proven by circumstantial evidence and inference. In plain English, this type of discrimination is not always obvious or overt.
Keep in mind that respondents who establish that the applicant was terminated for some valid reason, and that the pregnancy was not a factor, may successfully achieve a dismissal of the application. For example, an employee who is terminated because she had a long history of documented performance issues, or documented neglect of her duties, and coincidentally happens to be pregnant at the time of her termination (especially if the employer didn’t know about the pregnancy) will not likely be able to advance a successful human rights application.
Ontario's Employment Standards Act
Apart from the Human Rights Code issues involved, Ontario's Employment Standards Act ("ESA") prescribes that a pregnant employee is entitled to a leave of absence without pay unless her due date falls fewer than 13 weeks after she commenced employment.
The ESA also states that an employee may begin her pregnancy leave no earlier than the day that is 17 weeks before her anticipated due date or the day on which she actually gives birth, whichever comes first. However, this restriction does not apply to a pregnancy that ends with a still-birth or miscarriage.
An employee wishing to take pregnancy leave must give her employer written notice at least two weeks before the day the leave is to begin and, if the employer requests it, a certificate from a legally qualified medical practitioner stating the due date.
If an employee stops working because of a complication caused by her pregnancy or because of a birth, still-birth or miscarriage that occurs earlier than the due date, then the written notice and medical requirement mentioned above does not apply. However, the employee must, within two weeks after stopping work, give the employer written notice of the day the pregnancy leave began or is to begin and, if the employer requests it, a certificate from a legally qualified medical practitioner stating that she is unable to perform the duties of her position because of the complication and stating her due date.
Violations of the ESA act may be dealt with either by hiring a lawyer and going to court or, alternatively, making a complaint to the Ministry of Labour. However, you cannot choose both. There are advantages and disadvantages in both processes and you should speak to a lawyer to learn about the differences between these two processes.
Lastly, the contents of this article do not apply to federally regulated companies, such as banks, airlines, postal services, and other federally regulated industries. Employment and human rights disputes in such companies are dealt with by Canada Human Rights Act, and the Canada Labour Code.
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