Firing pregnant employees can be costly – and rightly so. Even if an employer dismisses a pregnant employee for non-discriminatory reasons (like downsizing), courts consider the impact of a pregnancy on an employee’s job search. This means larger wrongful dismissal awards or severance packages.
Wait, you can fire pregnant employees?
It’s not illegal to fire a pregnant employee.
It is illegal to fire some one because they are pregnant or may become pregnant. This includes firing someone because they plan to take a pregnancy or parental leave (aka “maternity leave”). It also includes firing some one because they need accommodations related to their pregnancy. In fact, it’s illegal discrimination even if pregnancy is just one of many reasons for dismissal. And, subconscious or systemic discrimination is illegal in Ontario, too.
However, it’s not illegal to dismiss a pregnant employee as part of genuine restructuring. Similarly, it’s not illegal to dismiss a pregnant person for cause.
Pregnant employees’ severance packages
The fact that it is legal to dismiss a pregnant person for non-discriminatory reasons doesn’t mean that their pregnancy is irrelevant. Instead, Ontario Courts consider pregnancy a reason to award a wrongfully dismissed employee more damages.
Courts can consider whether a dismissed worker was pregnant because this can make it harder for her to find alternative work. After all, “wrongful dismissal damages” or “severance packages” should provide employees with a reasonable amount of time to find a new job. This is why lawyers call it “pay in lieu of reasonable notice.”
Examples from Ontario courts
For example, in Nahum v Honeycomb Hospitality Inc, 2021 ONSC 1455, a judge said that pregnancy doesn’t automatically entitle a fired employee to more compensation, but it often will. The judge explained that even if prospective employers don’t discriminate, pregnancy can be a barrier to hiring. The judge explained: “An employer seeking to fill a position is likely to have an immediate need for someone in the role. The prospect of a new employee who will shortly require a lengthy leave will be unappealing to many employers and may not meet bona fide needs of their organization.”
In the Nahum, a woman who was 5 months pregnant received 5 months’ pay in wrongful dismissal damages. This may seem modest, but judges normally award younger, newer employees lower damages. This worker was only 28 years old and had worked at the company for just 4.5 months. Her dismissal wasn’t discriminatory and was without cause.
Similarly, in Harris v Yorkville Sound Ltd, 2005 CanLII 46394 (ON SC), a company fired a 29-year old pregnant single mother of two. The employer alleged cause and argued that she wasn’t entitled to any compensation. But, the Court disagreed. Taking into account factors including her pregnancy, a judge awarded her a year’s pay as wrongful dismissal damages. The judge specifically commented in the case that this was two more months than she would have received otherwise.
Why does this matter?
In my experience representing pregnant women and new parents after a dismissal, compensation can be frustratingly low. Employees whose dismissal was not discriminatory aren’t entitled to additional human rights damages. They only receive wrongful dismissal damages (and, in exceptional cases, special damages like punitive damages). Since the most important factors for courts tasked with assessing wrongful dismissal claims are an employee’s age and length of service, pregnant employees are frequently at a disadvantage. Pregnant workers are generally younger and therefor shorter service and lower wage workers than other wrongful dismissal plaintiffs.
A “bump” in severance pay for an employee dismissed while pregnant can go a long way. It can be a lifeline during a job search and during a pregnancy or parental leave.
If you’ve lost your job while pregnant, talk to an employment lawyer about your options. While some employees are not entitled to “pay in lieu of notice” because of their employment contract terms, many employees work without written contracts, without termination provisions in their contract, or with poorly worded termination provisions that can’t be enforced. In each of these circumstances, an employee is normally entitled to wrongful dismissal damages. And, as the cases show, a pregnant worker may be entitled to a little extra compensation because of the unique challenges of looking for work while pregnant.
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