Pregnancy Comments Trigger Sexual Harassment and Discrimination

A recent Human Rights Tribunal decision, Perez v. Tony De Melo Estate,found that a single comment about a pregnant employee’s body could rise to the level of sexual harassment and discrimination. 

Employment, pregnancy and accommodation requests

In 2016, the employee entered an arrangement with a now deceased landlord where she became the superintendent of his apartment building in exchange for living there rent-free. The employee’s job duties included cleaning and maintaining the building, collecting rent and handling tenant complaints.

The employee became pregnant in January 2018. During a March 2018 meeting, the landlord told the employee:

• “Oh my gosh, your belly grew quite a lot”; and
• “People say that when a woman’s belly grows, her vagina also grows.”

The landlord also asked the employee if he could see her stomach. When she declined, he asked her why not and said he didn’t want to touch. The landlord continued making comments about the size of the employee’s stomach throughout her pregnancy.

Soon after the March 2018 meeting, the employee spoke to the landlord about accommodation and told him she would be unable to perform cleaning or maintenance duties after she gave birth but could continue collecting rent and managing tenant complaints. The landlord denied the employee’s accommodation request and told her that if she needed help, she could ask her husband or seek assistance from others.

The employee approached the landlord again in September 2018 and reiterated that she would be unable to perform cleaning or maintenance duties after giving birth. The landlord again said she was responsible for those tasks and she could seek assistance from others. The landlord also told her that if she was unable to do her job, she needed to leave the apartment. The employee resigned the next month.

The employee alleged that the landlord discriminated against her by making sexually harassing comments about her pregnancy and failed to accommodate her.

The landlord discriminated against the employee

The tribunal found that the landlord made sexually harassing comments and discriminated against the employee because he:

• was her employer
• made comments about the employee’s pregnancy and body that a reasonable person would have known were unwelcome
• made the comments in their workplace; and
• made the comments based on the employee’s sex and pregnancy.

While the employee’s allegations largely stemmed from the March 2018 meeting where the landlord made comments about the employee’s body, the tribunal found that the landlord made multiple offensive comments during that meeting. While the Ontario Human Rights Code refers to a “course of vexatious comment or conduct” when defining harassment, single incidents can amount to harassment. The tribunal pointed out that while the landlord’s comments about the employee’s stomach were offensive, they would not have amounted to harassment on their own. However, the landlord’s reference to the employee’s genitalia demeaned and objectified the employee and caused an affront to her dignity.

The landlord did not fail to accommodate the employee

The tribunal stated that accommodation must be reasonable, not perfect. An employer is not required to fundamentally change working conditions or an employee’s essential duties to accommodate them.

The primary focus of the employee’s superintendent role was the performance of cleaning and maintenance duties. The tribunal found that when the employee requested accommodation, the landlord discussed different and reasonable options that would allow her to continue fulfilling her cleaning and maintenance duties, albeit in a different fashion. So the tribunal determined that the respondent did not fail to accommodate the employee’s pregnancy.

Key takeaways

The Perez decision reinforces that while harassment typically involves a course of conduct, single incidents where particularly offensive and hurtful remarks are made can also reach the threshold of harassment. The decision also provides important insights for employers as to what is expected when accommodating employees. While employers must do their best to provide reasonable accommodation, they are not held to the standard of perfection. In other words, employers do not need to alter an employee’s essential duties while accommodating them.