Policy on Pregnancy & Human Rights in the Workplace - Page 2

What are the roles and responsibilities of employees, employers, and unions?

All parties, including the employee, supervisors and managers, and union representatives, are responsible for cooperating and communicating respectfully, and in a timely manner, in the search for accommodation in the workplace. 

Employees

When a pregnant employee needs adjustments to her workplace, she has the responsibility to communicate this to her employer in a clear and timely way. She is also responsible to work with her employer and union to explore options for accommodation. She has the responsibility to accept a reasonable solution that accommodates her and allows her to fulfill the core functions of her position, even if the solution offered is not her preferred option. 

An employee should provide sufficient medical information so that the employer can make an informed decision regarding a request for accommodation. In some cases, initial notes from medical professionals may raise issues that require more detail in order to arrange the correct accommodation. When it is reasonably required, employees should follow-up with their doctors to provide this information. 

Employers

It is the employer’s responsibility to accommodate the needs of a pregnant employee by removing barriers that may limit her ability to do her job. It must seek out and explore alternatives, offering reasonable and dignified solutions to accommodate the employee, up to the point of undue hardship. 

Employers should make every effort to accept the medical advice of the employee’s doctors. Clarifications or supplementary information should only be requested when this is necessary to arrange accommodation. 

Union or employee representatives

Union and employee representatives have the responsibility to consider options, including those that may compromise union rules, to work towards solutions that accommodate the employee’s needs. 

What are some common issues and solutions?

Typically, there are four time periods when employers may be dealing with questions about how to treat pregnant employees. These are during:

• applications, interviews, job selection and job promotion;
• an employee’s pregnancy while in the workplace;
• an employee’s maternity leave or pregnancy-related absence; and
• an employee’s return to work post-pregnancy. 

Applications, interviews, job selection, and job promotion

• Decisions on awarding jobs or promotions should not be discriminatory¹². This includes the job advertisement, the application and interview process, any ranking or testing which is used to assess candidates, and the decision-making process itself¹³.
• Job advertisements should not exclude applicants who are pregnant, who are of assumed childbearing age or who have children. 
• Interviewers should not ask about plans to have children, use of birth control, or pregnancy. They can ask if the candidate can work the required hours. 
• Employment should not be denied simply because a woman is pregnant, or plans to have children. In rare cases, however, this may be a relevant factor for an employer to consider (e.g. where a pregnant employee would be unavailable to complete immediate short term contracts, urgent, or time-sensitive work). 
• Promotions available to all employees should not be denied to pregnant employees, or to employees who might be trying to become pregnant. 

During an employee’s pregnancy 

• When possible, a pregnant employee should attempt to schedule appointments outside of work hours, but when this is not possible, leave to attend pregnancy-related appointments should not be unreasonably withheld. This may be leave with or without pay, depending on the benefits and flexibility of the workplace. 
• Sick leave should not be denied to pregnant employees when they are ill during employment. Sick leave must be granted in the same manner as to all other employees¹⁴.
• Maternity leave should not be forced upon pregnant employees. They should be allowed to take maternity leave when they are ready to take it¹⁵.
• Harassment of employees because they are pregnant is prohibited. Harassment could include touching a pregnant woman’s abdomen, joking, teasing or commenting on her appearance or weight. 
• Employment contracts or term employment should not be ended early because of pregnancy or the intention to take maternity leave. 
• Less challenging tasks should not be given because of pregnancy unless specifically requested¹⁶.
• Training and promotional opportunities should not be denied because of pregnancy or intention to take maternity leave. 
• During restructuring or downsizing events, the jobs of pregnant employees should not be targeted for elimination; they should be assessed in the same manner as other positions in the organization. 

During an employee’s maternity leave or pregnancy-related absence 

• While on pregnancy leave, pregnant employees are entitled to the same employee benefits that they received during employment. Contributions towards employment benefits such as pension, health insurance, life insurance, disability, dental, medical etc. should be paid during maternity leave if the employee was receiving these benefits during employment. Employees responsible for a portion of the cost of benefits during employment, continue to be responsible for that portion while on maternity leave. 
• Employees on maternity leave should be made aware of job opportunities that become available so that, if they wish, they can compete for them. 
• Seniority and years of service continue to accrue during maternity leave, as this is not considered a break in the employment period. 
• Employees should be able to use any normally available medical, dental, and health benefits while on maternity leave. 
• Employees on maternity leave should be informed of any changes to their jobs, and be given the same opportunity to participate in any work-related discussions or consultations as employees who are at the workplace. 

During an employee’s return to work post-pregnancy

• Employees should return to the same job or a similar job, if the original job no longer exists. 
• Employees should receive any wage increases that came into effect while they were on maternity leave. 
• Employees who breastfeed or express/pump breast milk should be provided with accommodation for this purpose¹⁷. Accommodation can include: 
• Providing a suitable clean place to breast-feed or express milk and to store milk. 
• Providing longer or extra breaks for the purpose of breast-feeding or expressing milk. 
• Allowing for the extension of maternity leave. 
• Allowing for alternative work arrangements. 

What are some benefits and best practices?

Benefits 

In addition to meeting the legal obligations under the Act, employers may also benefit from developing family-friendly policies, informing employees of them, and preventing pregnancy-related discrimination in the workplace. 

One benefit is simply a better workplace overall and in turn, a better business or service. Women make up half the workforce and are increasingly entering non-traditional fields. This is an important labour pool. By supporting excellent pregnancy-related policies, respecting their workers and ensuring a discrimination-free workplace, employers can encourage greater productivity, less employee turnover and greater staff commitment to their organizations. A good reputation and high employee morale also tend to reduce turnover costs, and make recruitment easier. This can all translate into better service to clients and customers, which are definite advantages in a competitive marketplace. 

Another benefit is the long-term social and economic benefits for communities and the nation as a whole. It is useful to consider that pregnant employees literally create the workforce of the future and all employers rely on a labour force to exist and thrive. Supporting the replenishment of our workforce is a wise and humane investment that will benefit employers, local communities, and the national economy over the long-term. 

Adopting effective policies and procedures to promote equity and diversity, educating managers and employees, and responding respectfully to individual circumstances, can all easily prevent or limit discrimination in the workplace. Furthermore, by being well equipped and aware of their responsibilities under the Act, employers can reduce their legal liability, and save time and 12 money when responding to a human rights complaint. Better yet, they may be able to prevent a complaint from ever happening. 

Best practices 

Employers are encouraged to create supportive working environments for pregnant employees. Managers and supervisors should seek out creative and flexible responses to individual pregnancy issues in the workplace. Temporary solutions can include the following: 

The Commission encourages employers and pregnant employees to discuss options respectfully, and to work together to explore and agree upon the best solution(s) at the earliest opportunity. This involves open communication, creativity, flexibility, and often compromise by both parties. The parties should also remain open to adjusting a previously agreed-upon solution if circumstances change. If the workplace is unionized, union representatives should be welcome participants to these discussions and should facilitate options and enable flexible solutions from their side as well¹⁸.

In addition to supporting individuals, the Commission encourages all employers to develop their own internal policy regarding pregnancy rights, and to educate managers, supervisors and employees on this issue to prevent pregnancy-related discrimination. 

What does the law say?

The Canadian Human Rights Act 

The Canadian Human Rights Act (the Act) is semi-constitutional law in Canada that provides the legal framework for a fundamental social goal: the elimination or prevention of discrimination and the promotion of equality¹⁹. 

The Act provides a formal complaint process for employees who feel that they have been negatively affected by discrimination. The Canadian Human Rights Commission resolves complaints, refers them to a Tribunal hearing, or dismisses them. The Commission also encourages employers under its jurisdiction to create and maintain workplaces that foster dignity and respect for all employees. 

The Act prohibits discrimination on 11 grounds, including sex. In 1986 the law was changed to clarify that pregnancy-related discrimination is sex discrimination²⁰. In addition, in 1989 the Supreme Court of Canada confirmed that pregnancy-related discrimination is a type of sex or gender discrimination²¹.

Case law has also been developed to explain that under the Act, the ground of sex includes pregnancy and childbirth, as well as conditions and circumstances related to pregnancy and childbirth. The Act notes that special measures to assist employees with pregnancy and childbirth are not discriminatory²².

The Canadian Charter of Rights and Freedoms 

The Canadian Charter of Rights and Freedoms (the Charter) is part of Canada’s Constitution; it is the highest law of the nation. The Charter outlines fundamental rights and freedoms guaranteed to all Canadians, including the equality rights of women²³.

International standards 

International law recognizes that women’s equality rights include the right to be free from discrimination related to pregnancy. 

The Convention on the Elimination of All Forms of Discrimination Against Women states that countries should prevent and prohibit discrimination against women on the basis of pregnancy and that appropriate services in connection with pregnancy and breastfeeding should be provided²⁴. The Universal Declaration on Human Rights states that motherhood is entitled to special care and assistance²⁵. Similarly, the International Covenant on Economic, Social and Cultural Rights recognizes that states should adopt measures to help protect motherhood²⁶. In the Beijing Platform for Action, the United Nations Fourth World Conference on Women stated that 14 it is a basic right of women to make decisions concerning reproduction and childbearing free from discrimination²⁷. In addition, there are several international documents that specifically prohibit the discrimination of pregnant women in the workplace²⁸.

Other laws

In addition to the Canadian Human Rights Act, employers are legally obligated to meet the requirements of other workplace legislation, including the Employment Equity Act, the Canada Labour Code, and the Employment Insurance Act. These and other employment-related statutes or policies may provide specific protections and benefits to pregnant women. This policy does not explain these other laws, but the Commission encourages all employers to educate themselves on their obligations under these and other applicable laws. 

What is the Canadian Human Rights Commission’s role

If a pregnant employee believes that she is negatively affected by discriminatory workplace practices or policies contrary to the Act, she may file a complaint before the Commission. 

The Commission encourages employees to also consider whether other avenues of recourse are available to them, such as filing a grievance. 

Upon receiving a complaint, the Commission will analyse the complaint and determine the best course of action. This may include assisting the employee and employer to resolve the problem through mediation; referring the complaint to a Canadian Human Rights Tribunal (the Tribunal) hearing; or dismissing the complaint. 

The Tribunal is a separate body that has the power to make binding decisions and award remedies. If an employer is found to have discriminated, the Tribunal may require it to pay an employee damages, or to change its practices or policies to reduce or eliminate the discriminatory effect.