You know what they say about assumptions?

In Iskander v. 2363327 Ontario Incorporated, the Human Rights Tribunal of Ontario (HRTO) determined that a pregnant employee who was terminated after 1 week of employment based on a comment she made on Facebook, was discriminated against on the grounds of sex, including pregnancy.

Details of employment and the termination

K.I. applied to work as a cook at Burgers on Beechwood restaurant. During her interview she disclosed that she was pregnant, and needed to work enough hours to qualify for Employment Insurance (EI) maternity leave benefits. She was offered the position reporting directly to the owner and told that she would be able to work full-time after a brief ramp-up period, so would meet the required EI threshold.

After her first week of employment K.I. followed up with the owner to confirm that her hours would pick up moving forward. He responded saying “Yes, unfortunately we will not need you anymore. We hired a new Cook as a casual and we understand that as per your Facebook you will be leaving after the baby is born so we had to take that decision.” K.I. was shocked and upset, but did not discuss the matter further.

The Facebook post

K.I never discussed post maternity plans with the restaurant, or said that she would not be returning after her maternity leave. The restaurant never asked about her plans, if she intended to leave Canada, or anything about the Facebook post.

The post in question was an unrelated advertisement on Facebook, to which a family member commented asking if she was in Canada. K.I. responded, “just for a bit.” The employer used this comment to assume she would leave Canada and not return to work, though they never asked K.I. to clarify her statement.

HRTO ruling: Discrimination based on pregnancy

K.I. had her baby around 3 months later. Shortly thereafter she made an application to the HRTO that she was discriminated by the restaurant and its owner based on sex, including sexual harassment and pregnancy in her employment.

The former employer and owner only participated in the initial stages of the complaint, but did not attend the hearing or provide evidence other than their written response. So, the HRTO accepted K.I.’s evidence and allegations.

The HRTO found that the Facebook comment, which the employer never asked K.I. about, did not give the employer any basis to assume that she was unwilling or unable to continue working up to her due date, that she was going to resign either before or after that time, or that she was uninterested in returning following the end of her leave.

Damages awarded to K.I.

The HRTO determined that the employer connected the Facebook post with the idea that she would be leaving Canada relating to her pregnancy, and then terminated her because of it. Her pregnancy was undisputably a factor in her termination, especially because of the owner’s message. K.I. was awarded damages for injury to dignity, feelings and self-respect, lost wages, and lost EI benefits amounting to $37,849, which both the restaurant and owner had to pay.

Employer take aways

Employers should be cautious when making assumptions about employees, especially relating to matters involving Code grounds. Employers should discuss concerns with employees in an environment where the employee feels safe to speak up before making any major decisions, and only rely on direct statements from the employee, or those verified by the employee.

Discrimination claims are sufficiently serious that employers should do their best to limit risk of this type of exposure as much as possible by having conversations that might be difficult in the short term, but benefit them long term.

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