Policy on Pregnancy & Human Rights in the Workplace - Page 1

Women in the workplace are valued employees entitled to equality, dignity, respect and accommodation of their needs when they are attempting to become pregnant, while they are pregnant, and as they return to work following a pregnancy-related absence.

WHAT IS THE PURPOSE OF THIS POLICY?

This policy will help employers, unions, and employees under federal jurisdiction to better understand their legal rights, obligations, and duties regarding pregnancy-related discrimination issues. 

It will also explain some of the employer benefits of providing respectful and inclusive workplaces for pregnant employees, identify potentially discriminatory practices, and offer practical solutions. 

WHAT IS THE COMMISSION’S OFFICIAL POLICY STATEMENT?

The Canadian Human Rights Act (the Act) prohibits discrimination related to pregnancy. Pregnancy-related discrimination is a form of sex discrimination, because only women can become pregnant. Discriminatory practices related to pregnancy, such as negative treatment, refusal to hire or promote, termination of employment, or harassment, are against the law under the Act. 

Pregnancy in the workplace is a fundamental human rights issue of equality of opportunity between women and men. Women should not suffer negative consequences in the workplace simply because they are pregnant. Job functions and workplace rules may affect a pregnant employee differently than other employees. As a result, adjustments to working conditions may be required to reduce or eliminate discriminatory effects. 

Employers have a legal obligation to accommodate pregnancy-related needs unless the accommodation will cause undue hardship. Undue hardship considers factors such as health, safety and cost. The pregnant employee, the employer, and other parties such as union representatives, must cooperate and compromise to find reasonable and practical solutions. 

In addition to fulfilling their legal obligations, the Canadian Human Rights Commission (the Commission) encourages employers to take additional steps to prevent pregnancy-related discrimination, to resolve employee concerns quickly and effectively, and to foster a human rights culture in their workplaces. 

This Policy is subject to the Act, and to decisions by the Canadian Human Rights Tribunal and the Courts, and should be read in conjunction with those decisions. This policy is not a substitute for legal advice. 

WHO IS COVERED UNDER THIS POLICY?

This policy applies to all employers under federal jurisdiction subject to the Canadian Human Rights Act and the Employment Equity Act, and to the unions and employees of these organizations. This includes federal government departments, agencies and Crown corporations, banks, inter-provincial transportation companies (including trucking, bus, rail, and air), telecommunications service providers, and First Nations Bands. Employees at these workplaces are protected from discrimination in the workplace. This protection extends to full-time, part-time, temporary, probationary, and contract workers, as well as volunteers, and job applicants. 

HOW IS PREGNANCY-RELATED DISCRIMINATION DEFINED?

Discrimination is an action, decision or policy that denies an individual or a group a benefit, or affects them negatively based on one or more of the grounds of discrimination identified in the Act. Pregnancy-related discrimination means any action, decision, or policy that negatively affects a woman as a result of her pregnant status. 

What actions might result in discrimination?

The following actions are prohibited by the Act if they result in discrimination related to pregnancy: 

  • refusing to hire or promote; 
  • harassment1
  • adverse differential treatment in employment; 
  • termination of employment2
  • instituting or following policies3 or practices4; and 
  • failure to provide reasonable accommodation. 

What are pregnancy-related conditions and circumstances?

Pregnancy includes the process of pregnancy from fertility treatment(s), through childbirth, to the post-delivery and breastfeeding period. Pregnancy also includes pregnancy related conditions and circumstances. 

Pregnancy-related conditions include, but are not limited to: 

  • fertility treatment(s) and/or family planning; 
  • medical or health conditions or complications that might affect or be affected by pregnancy or childbirth (e.g. diabetes, high blood pressure, etc); 
  • miscarriage or conditions arising as a direct or indirect result of miscarriage; 
  • stillbirth or conditions arising as a direct or indirect result of stillbirth; and 
  • abortion or conditions arising as a direct or indirect result of abortion. 

Pregnancy-related circumstances include: 

  • planning or attempting to conceive; 
  • childbirth; 
  • reasonable recovery time after childbirth, miscarriage, stillbirth or abortion; 
  • pregnancy as a surrogate; 
  • placing a newborn baby for adoption; 
  • post-pregnancy maternity leave; and 
  • breastfeeding. 

How does pregnancy relate to other grounds of discrimination? 

Pregnancy and family status

The Act also provides protection from discrimination on the ground of family status, which includes the status of being related to someone as a parent or a spouse. 

Family status issues may be raised in the workplace by people related to a pregnant woman (such as a spouse or partner), or by those related to the expected child (such as an intended mother or father of a surrogate pregnancy or adoption). For example, a spouse of a pregnant woman may need time off work to accompany her to a medical appointment. 

Family status rights also consider a broader range of issues beyond pregnancy, such as parental leave for new mothers or fathers, and child-care-related needs. Family status issues can be very complex. 

Although this policy is focused on pregnancy-related rights only and does not discuss family status rights in detail, it is important for employees and employers to note the connection between these two protected grounds. 

The same broad principles of human rights, dignity, respect, and accommodation that are explained in this policy, can be applied to any ground protected under the Act, including family status. 

Other grounds and multiple grounds

Pregnancy is not a form of disability under the Act. 

However, pregnancy may affect or be affected by other medical issues. Some employees may have needs related to pregnancy and other grounds such as disability. For example, both male and female employees may need time off for specialized medical care if they have underlying conditions that complicate fertility, conception, or pregnancy. Pregnancy-related disability issues might arise before, during, or after pregnancy. 

Some groups of women may also be particularly vulnerable to discrimination or harassment, due to unfair but nevertheless persistent negative stereotypes or perceptions of these groups as pregnant women or as mothers. All pregnant women are deserving of equal respect and dignity in the workplace. Teasing, demeaning, or ridiculing pregnant employees because they are—for instance—disabled, single, young, lesbian, Aboriginal, transgendered, Muslim, Jewish, Catholic, or atheist, can be a form of discrimination. 

The Act recognizes that discrimination may be related to more than one ground.5 Pregnant women who believe they are being discriminated against or harassed may make a complaint on more than one ground. For example, if a pregnant woman felt she was being harassed at work, because she was pregnant and single, she could make a complaint on the grounds of sex and marital status. 

WHAT IS THE DUTY TO ACCOMMODATE?6

Some people may need to change the way they work because of pregnancy-related needs and an employer has a legal duty to meet those needs.7 An employer must take whatever measures are necessary to allow its employees to work to the best of their ability without being limited by discrimination. For example, a pregnant employee may need additional time for bathroom breaks; these should be allowed without docking her existing break times. 

It is important to remember that the duty to accommodate pregnancy-related needs only applies when an employee has a real need and has communicated what that need is. The duty to accommodate is not intended to create an obligation for an employer to meet every request or preference. The pregnant employee is entitled to reasonable accommodation, but she is not necessarily entitled to a perfect solution, nor is she guaranteed her preferred option. However, she should not be forced to accept an undignified solution, or one that punishes her. 

Each situation involving the duty to accommodate must be looked at on a case-by-case basis, since each pregnant employee will have unique circumstances and individual needs, and each workplace is different. 

What is undue hardship? 

The duty to accommodate ends when the employer experiences undue hardship. An employer may need to make some adjustments, and even bear some costs, to help a person do their job,8 even if these might cause some hardship to the employer. However, at the point where factors such as safety, health or cost make the burden on the employer too high, accommodating the individual could create undue hardship for the employer. Once accommodation reaches undue hardship, an employer may not be required to accommodate an employee further.9 

It is important to document accommodation requests, the steps that were taken to accommodate the employee, as well as any evidence that may lead an employer to conclude they have reached the point of undue hardship. The point of undue hardship varies for each employer and in each situation. 

Health and safety risks and pregnancy 

Health and safety in the workplace is important, and should be balanced with the right of a pregnant employee to participate fully in the workplace. 

Doctor-ordered restrictions should be followed, but in the absence of this, employers should not assume a woman is unable to perform her duties merely because she is pregnant. A pregnant employee should raise any concerns with her supervisor or health and safety officer at the earliest opportunity. If an employer believes that workplace conditions will result in a serious health or safety risk to a pregnant employee, this should be discussed with her.10 Where possible, employers should find ways to reduce or eliminate the source of harm, protect the pregnant employee in her substantive job, or find temporary options to avoid health risks during the pregnancy period.11 The pregnant employee should work with the employer to find alternate ways to reduce risks and still fulfill the core functions of her job. Temporary reassignment to another position, or temporary leave, may be possible solutions in some workplaces.

More information on this topic is available in the Treasury Board of Canada’s Manager’s Handbook Canada Labour Code – Part II.

Health and safety risks and accommodating pregnancy: 
Finding the balance – A practical example

A job in a scientific lab may require a high level of exposure to chemicals proven to be toxic for pregnant women. This fact might appear to eliminate a pregnant candidate, even if she is the top applicant. 

However, a top candidate must not be denied a job opportunity if she can be accommodated throughout her pregnancy. 

An employer must first ask how the pregnancy can be accommodated in the workplace: 

Is chemical exposure unavoidable during the period of the pregnancy? 

Can the core functions of the job be done without the risk of exposure from specific toxic chemicals that pose a risk? 

Can certain functions be shared with others for the duration of the pregnancy? 

What can be done to adjust the job or the working conditions to make it safer? 

If temporary adaptations to the job can be made to increase the safety for a pregnant employee, the employer should attempt to make these changes. 

For example, if the position only required brief exposure to the chemical-filled areas while traveling to regular meetings, finding alternate routes through the workplace to avoid exposure, moving the meeting room to a different location, or giving the pregnant employee additional protective gear could all provide simple temporary solutions to this issue.


Footnotes:

1 14. (1) It is a discriminatory practice,... (c) in matters related to employment, to harass an individual on a prohibited ground of discrimination. (2) ...sexual harassment shall,...be deemed to be harassment on a prohibited ground of discrimination. 1980-81-82- 83, c. 143, s. 7.

2 7. It is a discriminatory practice, directly or indirectly, (a) to refuse to employ or continue to employ any individual, or (b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. 1976-77, c. 33, s. 7.

3 10. It is a discriminatory practice for an employer, employee organization or employer organization (a) to establish or pursue a policy or practice, or (b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment, that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. R.S., 1985, c. H-6, s. 10; 1998, c. 9, s. 13(E).

4 Sometimes, workplaces have rules, policies, practices and behaviours that apply equally to everyone, but can create barriers based on an irrelevant group characteristic. These kinds of policies and practices that deprive or tend to deprive employees of employment opportunities because they are pregnant or plan to become pregnant must not be pursued or implemented by employers. 

5 Section 3.1 of the CHRA states that "For greater certainty, a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds." 1998, c. 9, s. 11. 

6 For more information, please see Commission publications "A Place for All: A Guide to Creating an Inclusive Workplace," at /discrimination/apfa_uppt/toc_tdm-eng.aspx and "Bona Fide Occupational Requirements and Bona Fide Justifications under the Canadian Human Rights Act: The Implications of Meiorin and Grismer" at http://www.chrc-ccdp.ca/sites/default/files/bfore_0.pdf

7 Section 15(2) of the CHRA states that (2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost. 

8 CHRC’s Guide to Accommodation See Employers and Employee Responsibilities when accommodation is required, at: /preventing_discrimination/toc_tdm-en.asp.

9 Section 15(1) of the CHRA states that "It is not a discriminatory practice if (a) any refusal, exclusion, expulsion, suspension, limitation, specification or preference in relation to any employment is established by an employer to be based on a bona fide occupational requirement;" 

10 Ontario’s Maternal Newborn and Early Child development Resource Centre provides a comprehensive list of the type of workplace hazards pregnant women should avoid. A good introductory guide to determining workplace safety issues, "How to be a Family Friendly Workplace" (Best Start Resource Centre, 2010) is available at: http://www.beststart.org/resources/wrkplc_health/pdf/preg_work_16pg_FNL.pdf

11 A more thorough and comprehensive research guide "Workplace Health: Research and Strategies," is available at http://www.beststart.org/resources/wrkplc_health/pdf/WorkplaceDocum.pdf