Is it illegal to fire an employee when she is pregnant?
No, it is not always illegal to fire an employee who is pregnant. Employers can lawfully terminate an employee who is pregnant so long as the reason for the termination was unrelated to the pregnancy.
Employers in Ontario can fire an employee at any time for non-discriminatory reasons or for no reason at all.
Importantly, however, employers can never terminate an employee because of discriminatory reasons. The Ontario Human Rights Code (“the Code”) protects employees from terminations because of discriminatory reasons. The Code prohibits terminations that, among other things, discriminate against workers who are pregnant. Specifically, section 5 of the Code reads as follows:
“Every person has a right to equal treatment concerning employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, a record of offences, marital status, family status or disability”.Human Rights Code
Regarding pregnancy and getting fired, as per the Code, discrimination on the grounds of sex includes discrimination because of pregnancy. In other words, it is sex discrimination under the Code to terminate a person because she is pregnant.
Therefore, in summary, in Ontario, it is legal to terminate someone who is pregnant, but it is illegal to terminate someone because she is pregnant.
It can be difficult to determine whether a pregnant employee was terminated for discriminatory or non-discriminatory reasons. But there is a legal test to prove a pregnant employee’s termination was discriminatory or not. The test is as follows:
To prove discrimination, the employee must show:
- that she was pregnant;
- that she was fired; and
- her pregnancy was the reason, in whole or in part, for her termination.
Regarding the third part of the test, an employee must show that the employer considered her pregnancy as at least a small factor in deciding to terminate her employment. The burden is not insurmountable. The employee will have to show that the employer terminated her, at least in part, because of her pregnancy based on a “balance of probabilities“ (i.e., that it was more likely than not (e.g. “probable”)) that the employer terminated the employee’s employment because she was pregnant.
Thus, an employee will have to show some evidence, even if it is just circumstantial, that her pregnancy played some part, however small, in her termination to prove discrimination.
If an employee is successful in proving her termination was because of her pregnancy, and that it was, therefore, discriminatory, she will be entitled to several remedies. For one, the Code gives courts the power to force the employer to give them her job back. However, that is rare. What is more likely is an award of monetary damages of around at least $15,000 (or more), generally.
In addition, the terminated pregnant employee would be entitled to severance (as discussed below).
What happens if the pregenant person’s firinig was not discriminatory?
As I mentioned above, employees can fire a pregnant person so long as it is not discriminatory. For example, if an employee is fired because of an office closure, and everyone else at the office is fired, it is not likely discriminatory. What happens in these cases?
Just like with workers who are not pregnant when they are terminated, a terminated pregnant worker is entitled to severance. The amount of severance they are entitled to will be calculated in reference to their age, position, years of service and chances of re-employment unless they have a valid contract that provides some other predetermined formula.
However, recent case law confirms that employees who are terminated when they are pregnant can be entitled to more severance than employees who are not pregnant. I’ll call this the “pregnancy bump”.
In Nahum v. Honeycomb Hospitality Inc., 2021 ONSC 1455, as argued successfully by my colleague Andrew Monkhouse, the Ontario Divisional Court upheld a summary judgment motion finding in favour of a pregnant employee in her wrongful dismissal lawsuit. On the subject of pregnancy, the motion judge agreed with our firm’s argument that the pregnancy did have an impact on severance given the point in the employee’s pregnancy (five months) at which she was terminated and the competitive job market.
The employer appealed, arguing that the motion judge made an error by considering pregnancy as a factor in calculating severance and taking judicial notice of pregnancy as a factor in the ability to secure employment in the absence of evidence.
However, the Divisional Court rejected the employer’s appeal, finding that the motion judge did not proceed on the basis that pregnancy would automatically lead to an extension of severance. She expressly rejected that approach, holding instead that:
“Considering pregnancy as a Bardal factor is consistent with the Bardal framework because each case must be determined on its own facts. As for judicial notice, courts have already taken judicial notice of the fact that pregnancy makes re-employment more difficult, adding weight to the view that it is a common-sense observation.”Nahum v. Honeycomb Hospitality Inc.
This is the first case at an appellate level court that, to our knowledge, expressly added a “pregnancy bump” for severance in some circumstances, and our firm successfully argued it.
Call us for a free consultation. An employment lawyer or paralegal at our law group will speak with you for thirty minutes and answer any questions you may have about pregnancy and getting fired.
Jeff is an employment lawyer in Toronto. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.