There’s a story in the Toronto Star today about an upswing in incidents of employers dismissing pregnant women. A theme in the piece is that employers are using the economic downturn as justification for dismissing employees who will need to take a long leave.
In the early days of human rights laws, adjudicators had some difficulty sorting out whether discrimination on the basis of pregnancy is discrimination on the basis of ‘sex’. Some adjudicators thought it wasn’t. But in cases such as Brooks v. Canada Safeway (finding an insurance policy that denied certain benefits to pregnant women discriminated on the basis of sex) and Janzen v. Platy Enterprises (sexual harassment is sex discrimination), the Supreme Court of Canada clarified that discrimination that targets only women (i.e. only women can get pregnant) is sex discrimination.
Today, human rights codes often expressly state that discrimination on the basis of pregnancy is sex discrimination. For example, section 10(2) of the Ontario Human Rights Code provides:
Pregnancy
10(2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.
Did you catch the last part? It includes discrimination on the basis that a woman ‘may become pregnant’. What problem do you think that language is intended to address? What do you think should happen if the employer believes a job is too strenuous or dangerous for a pregnant woman to perform? Should the employer in that case be permitted to deny the woman the job, even if the woman is prepared to assume the risk?