Looking to terminate a pregnant employee? Proceed with extreme caution

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by Howard Levitt and Shloka Saini

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Terminating a pregnant employee? Legal, valid, not a big problem. Terminating an employee because she is pregnant? Illegal and a very big problem.

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An employer can lawfully terminate an employee who is pregnant if the reason for termination is unrelated to the pregnancy. However, the reality is far more challenging. Even if the reason for terminating a pregnant employee had nothing to do with the employee’s pregnancy, employers will find themselves in a difficult situation.

The Ontario Human Rights Code protects an employee from discriminatory termination. Terminating an employee because she is pregnant falls under sex discrimination which is a protected ground under the Code. The legal test for proving that an employer has terminated a pregnant employee because of her pregnancy is not a hard one to fulfil. The employee must prove that her pregnancy was the reason for her termination, whether in whole or even in part. The proof must be on a “balance of probabilities.” This means that it was more than likely that the employer terminated the employee because she was pregnant, not that her pregnancy was the only factor in the termination. So long as her pregnancy played any role in the termination, she would succeed in proving that the employer violated the Code.

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Pregnant employees who are terminated may be entitled to more severance. A court may consider pregnancy as a relevant factor in their evaluation of the amount of severance owed upon termination as it did in Nahum v. Honeycomb Hospitality Inc.

Sarah Nahum, a 28-year old employee, had been employed for only 4.5 months as director of people and culture. She was five months pregnant when she was terminated without cause. The Ontario Superior Court awarded her five months’ reasonable notice finding that her pregnancy was likely to create difficulties in finding employment and as such, should be recognized as a factor.

However, terminating a pregnant employee will not always lead to a higher severance amount. Pregnancy is not an automatic factor in lengthening an employee’s notice period. The analysis is contextual and determined on a case-by-case basis.

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What if an employee is terminated because they took maternity leave? If you are terminated before, during, or after maternity leave because you took this job-protected leave, your employer is discriminating under the Code and you are entitled to monetary damages.

In addition to the Code, an employee is also protected under the Employment Standards Act (ESA). Pregnancy leave, as it is referred to in the ESA, is up to 17 weeks. An employer is not obligated to pay an employee wages while she is on pregnancy leave. However, employers do still have certain obligations to meet, such as ensuring that an employee is reinstated in the same (or comparable) role upon her return. If terminated while on maternity leave, an employee is entitled to a termination package.

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What if the employee’s pregnancy prevented her from performing the tasks assigned to her? Can an employer terminate her? An employer must accommodate an employee’s pregnancy until the point of undue hardship. This could mean altering her responsibilities while she is pregnant.

If an employer can prove that there were valid reasons for a pregnant employee’s termination, reasons that were separate from the pregnancy, the termination is considered legal. For example, if a business was forced to shut down because of COVID-19 and the employer terminated all employees, a pregnant employee would likely have a difficult time proving that her termination was a result of her pregnancy. The termination applied to everyone at the company. Other examples include performance issues, restructuring of a department, etc.

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In Fleming v. Salon 130 Inc., Dawn Fleming was pregnant at the time of her termination yet the Human Rights Tribunal ruled in favour of the employer. The employee claimed that she was terminated days after she announced her pregnancy and her termination was the company’s direct response to her pregnancy. The employer stated that the employee’s pregnancy was not a factor in its decision to terminate her. Her performance was poor and unsatisfactory, and she was given multiple warnings prior to her termination. The Tribunal held that the employer did not discriminate and she was terminated based on her performance issues.

Caveat for employers? Proceed with caution when terminating a pregnant employee. If your decision to terminate an employee is unrelated to her pregnancy, document your concerns in order to refute any correlation between the employee’s pregnancy and your decision to terminate her.

Takeaways for employees? Seek legal advice if you believe your pregnancy/maternity leave is the reason for your termination. More than likely, you are owed both severance and additional human rights damages. An argument for reinstatement may also be on the table.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Shloka Saini is with Levitt Sheikh.