Terminating a pregnant employee sounds like something you would see on a “do not do” list for employers. But what if there are other reasons behind the employer’s decision to terminate and the employee’s pregnancy was not a factor? That was the situation in Ontario Human Rights decision of Abrams v. Kupar. Dee Abrams claimed that she was discriminated against on the basis of pregnancy when her employment with her employer, Truck-Right Data Management Inc., was terminated early in her probationary period. She filed an application with the Human Rights Tribunal of Ontario, alleging discrimination in employment on the grounds of sex, in violation of the Human Rights Code, R.S.O. 1990, c. H. 19.
The respondent, Dirk Kupar, was President of Truck-Right Data Management Inc., where Abrams was hired as a software technician in May 2014. While there are differing accounts of the context in which Abrams revealed that she was three months pregnant, the parties agreed that the company was aware of the applicant’s pregnancy prior to hiring her. Kupar denied that the applicant’s pregnancy was a factor in his decision to fire her only nine days later, claiming that her employment was terminated because it quickly became apparent that she was not suited for the job.
The Tribunal accepted this explanation.
The Human Rights Code prohibits discrimination on the basis of sex. Section 10(2) of the Code provides that equal treatment, free of discrimination due to sex, includes, “the right to equal treatment without discrimination because a woman is or may become pregnant”.
In order to demonstrate that she was discriminated against on the basis of pregnancy, the applicant must establish that her pregnancy was a factor in the decision to terminate her. Pregnancy need not be the sole factor leading to the termination, but only a factor. Once a prima facie case of discrimination has been made out by the applicant, the burden then shifts to the respondent to present a plausible, non-Code related explanation for the action. If it is found that pregnancy was a factor in the decision to terminate, the employer may be culpable.
The Tribunal found that the termination was unrelated to the applicant’s pregnancy for two reasons. First, the fact that the respondent hired the applicant knowing that she was pregnant suggested that her pregnancy was not an issue. Second, it seemed credible that the applicant was terminated due to poor job performance. In the Tribunal’s view, the respondent provided “credible, non-discriminatory” reasons for the applicant’s termination.
The application was accordingly dismissed.
Lessons for Employers
If there are other, non-Code related explanations for terminating a pregnant employee and the employee’s pregnancy is not a factor in the decision to terminate, then the act of termination may be not discriminatory. It will be critical for the employer to have evidence to establish the reasons for termination are unrelated to the pregnancy. Employers should consult with Employment Law counsel to have the evidence reviewed prior to taking steps to discipline or terminate a pregnant employee.
Lessons for Employees
While employers are prohibited from terminating a pregnant employee on the basis of the pregnancy, there are still ways that a pregnant employee may be legally terminated. Consulting with an Employment Law lawyer as soon as concerns arise is recommended.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
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