According to the British Columbia Human Rights Clinic, operated by the Community Legal Assistance Society, more pregnant women are seeking help in fighting discrimination cases before the B.C. Human Rights Tribunal.
Robyn Durling, co-director and communications director & legal advocate for the clinic says: “In 2004, pregnancy cases accounted for 4.5 per cent of all cases handled and now they are nine per cent.” The most noticeable increase has come within the past four or five years.
He says two-thirds of those pregnancy-related clinic cases involve women seeking help after announcing their pregnancy to their employer and as a result felt they encountered some form of human rights violation. Durling, before turning the case over to another advocate earlier this year, was involved in a complaint by a young Vernon B.C. server employed at a pub who alleges that her boss urged her to quit over her pregnancy because customers “didn't want to see it.”
James L. Gould, Vancouver office managing partner for Hamilton Howell Bain & Gould Law Corporation, which only represents plaintiffs in employment law issues, says that most mid- and- large size employers generally acknowledge there is a commitment to accommodate a pregnant employee.
“There are some excellent employers and they follow their obligations to a ‘T.’ But, there are still some employers who are ignorant of their obligation, or refuse to honour their obligations,” says Gould. "They take advantage of their employees, particularly when they have an employee who they feel will not challenge them.”
He says that low-income earners often do not have the financial resources to launch a legal case under B.C.’s Employment Standards Act and his firm has provided pro bono legal work or worked at a reduced fee.
“We are seeing a class of individuals who are right around the poverty line in restaurants or bars or other service industry jobs where employers are taking advantage of them,” he says.
But whether it is with women in entry level jobs or with women in professional career positions, there is still a reticence to announce a pregnancy, he says.
“We see a lot of women and it is a constant concern for those in a senior position, who are scared — very scared — and worried about when they should tell their employer," says Gould.
There is no clear indication of whether more abuses in the workplace are happening or whether women are just finding more ways to bring forward complaints for legal redress. Gould doesn’t think it is an uptick in incidents, but rather a reflection of a growing workplace knowledge of rights afforded to pregnant women and women more willing to seek out solutions. Durling’s numbers could be a reflection of more seeking help and legal support from a government-funded organization at a time when access to justice is difficult. The clinic route also provides for what Durling calls a “broader” approach for redress.
The B.C. Human Rights Code, under s. 37, provides for compensation for injury to dignity, feelings and self-respect. The largest settlement under the section has been for $75,000 and in a pregnancy related case the awards range from $15,000 to $2,500.
“The awards are not high,” he says, especially in a case where the employment is terminated and the employer may be off the hook from paying an employee’s benefits package during her maternity time and at the same time paying for a relief worker. (Under the new 2017 Liberal federal budget, maternity leave has been extended to 18 months with the same government benefits spread over the longer period).
Currently, the Clinic's pregnancy cases are coming from "right across the board", he says. Ten years ago, hair salons and veterinarian offices, where newly expectant mothers had to early-announce as they dealt with x-rays and hair dye chemicals, were leading sources of cases.
The British Columbia Law Institute is currently conduction a review to make recommendations for reform of the Employment Standards Act which has not undergone a comprehensive review for 20 years and does not account for new technology and a more fluid workplace. Greg Blue, Q.C., says the review of the whole statute including sections that relate pregnancy leave. "The (statute) review will be lengthy," he says, adding a consultation paper should be out by early fall with time for feedback before a final report recommendations are issued near year end.
Gould thinks others change are also needed. The most vulnerable individuals are those entering the workforce, often young people. "You receive all kinds of education in high school - sex education, grammar, public speaking, mathematics - but you come out not knowing your employment rights," he said, adding that schools should provide education on the Employment Standards Act on their curriculum.