This blog is the second installment of a four-part series by Sultan Lawyers focused on employment issues specific to pregnancy and parental leave in Ontario. The first installment can be read here.
Women who are pregnant or are of childbearing age are often subjected to various subtle forms of discriminatory conduct at work. Many women feel as though they miss out on workplace opportunities as a result of taking a pregnancy or parental leave of absence from work. Below we discuss this issue and whether there are legal grounds to address it.
Protections Relating to Returning to Work
Protections exist which allow women to re-enter the workforce following a pregnancy-related leave of absence. In particular, following such a leave, women in Ontario are entitled, pursuant to the Employment Standards Ac, 2000 (“ESA”), to be reinstated to the position they held prior to their leave, if it exists, or to a comparable position if it does not.
While women are protected in terms of their re-entry into the workforce, many women report experiencing employment-related setbacks as a result of taking a pregnancy-related leave of absence from work, including missing opportunities for a promotion while on maternity leave.
Human Rights Implications
In Ontario, provincially regulated employees are protected against discrimination on the basis of a number of grounds outlined in the Ontario Human Rights Code, including family status and sex. On this basis, employers cannot refuse to provide promotions to women because of the mere fact that they are pregnant or will be taking a pregnancy or parental leave of absence unless there is a bona fide requirement involved.
Further, and on this basis, employers should keep women who are on a pregnancy or parental leave of absence informed about major developments in their absence, including career opportunities, in order to avoid potential differential treatment that could be deemed discriminatory.
Specifically, the Human Rights Tribunal of Ontario has found that discrimination may take place when an employer refuses an application for promotion because the applicant will be on maternity leave when the role is set to begin.
While employers are permitted to reorganize the workplace while an employee is on a pregnancy or parental leave of absence, employers must ensure that the woman is not negatively impacted by the reorganization decision as compared to employees who are not on a leave. It is therefore prudent for employers to keep employees who are on leave up-to-date with respect to workplace changes and the impact of those changes on their roles within the workplace.
Options for Employees Who May Have Missed Out on a Promotion
The cost of non-compliance with applicable human rights legislation can be significant to employers. If a human rights tribunal concludes that an employer did not promote an employee for reasons related to her maternity leave, then the employee may be entitled to compensation related to the lack of earnings or lost opportunity, as well as general damages, including for mental distress.
If you feel you have missed out on an employment-related opportunity because you were on a pregnancy or parental leave of absence, we encourage you to contact the experienced employment lawyers at Sultan Lawyers to assist you with addressing the situation. We can provide advice and guidance based on your goals, including how to interact with your employer to facilitate more equitable treatment while on leave or potentially executing strategies that would see you transition to a new position with income support.
If you have any questions with respect to Ontario’s human rights legislation, maternity leave, your rights and protections while on a pregnancy or parenting-related leave, please contact Toronto employment and immigration lawyers, Sultan Lawyers, at (416) 214-5111 or here.
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