In McKenna v. Local Heroes Stittsville, the Human Rights Tribunal of Ontario found that the Employer, which operates as a sports bar, discriminated against the Employee by refusing to provide her with work and eventually terminating her employment on the basis of her sex (pregnancy). Specifically, the Employee began working for the Employer in March of 2011 as a part-time waitress. In July of 2011, the Employee became pregnant. In approximately November of 2011, being four months into her pregnancy, the Employer introduced new dress code for the staff that resulted in staff having to wear more form-fitting shirts. The Employee spoke to the Employer requesting that she not have to wear the new shirts as it highlighted “her already visible pregnancy”. In response, the Employer informed the Employee that she would not have to wear the new uniform for future shifts. Following this conversation with the Employer, the Employee worked two further shifts that had been scheduled prior to her discussion with the Employer about the new uniform, and thereafter was not provided with any further shifts. The Employee then received a Record of Employment indicating that she had resigned from her employment.
The Human Rights Tribunal of Ontario found that, “The new uniform that staff were expected to wear was made to draw attention to the shape of the body”, and therefore, “the fact that the applicant was pregnant, and visibly so, was regarded by the respondents as inconsistent with their branding efforts and that her presence at work was an inconvenience that could be dispensed with by not offering her any more shifts.” As a result, the Human Rights Tribunal of Ontario stated, “I think that it is more likely than not that the applicant’s pregnancy was the only reason for ending her employment”, and awarded damages.
Impact of Decision on Employer
As the above decision highlights, employers are not permitted to terminate an employee’s employment on the basis of any of the protected grounds listed in the Ontario Human Rights Code, being race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. Employers should ensure that they adhere to such requirements, failing which they may be subject to the various damages the Human Rights Tribunal of Ontario has the authority to award.
Impact of Decision on Employees
Similarly, employees should ensure that their Human Rights are protected in the workplace and familiarize themselves with what is and is not permitted by employers under the Ontario Human Rights Code. Should an employee believe that their termination is in breach of the Ontario Human Rights Code, they should immediately seek the assistance and guidance of experienced Employment Law Counsel.
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