Is requiring a pregnant woman to wear a tight uniform gender discrimination?
Ashley McKenna began working for the sports bar Local Heroes Stittsville in March of 2011. In July of 2011 Ms. McKenna became pregnant. In November of 2011 the bar’s manager, Mr. Shane Chartrand, took over as new manager and attempted to revive a struggling business by implementing a new staff dress code. Specifically, the new uniform was to consist of a tight form-fitting lycra shirt made to look like a sports referee jersey to be worn with black lycra yoga pants or black lycra yoga shorts. All wait staff and bartenders were women between 19 and 25 with the exception of one waitress that was older and only worked the breakfast and day shift. Ms. McKenna told Mr. Chartrand that she was not comfortable wearing the new uniform as it would highlight her now visible pregnancy. Mr. Chartrand told Ms. McKenna that there would not be a problem to making an exception to the dress code in her case. However, the applicant received no more calls from work and was told no work was available when she attended at the bar or called in though the bar hired two (2) new waitresses.
Near the end of December of 2011 Ms. McKenna wrote to the bar regarding the dress code conversation, her willingness to work, changes to her scheduled shifts and asked if she had been terminated. Following this letter Mr. Chartrand responded with a letter of his own which among other things stated that Ms. Mckenna was not terminated and had not been scheduled due to an assumption of non-availability. Ms. McKenna was then scheduled for two breakfast shifts in early January of 2012 which she was sent home from early and did not hear from the employer again until the end of January when she received a record of employment that indicated she quit. Ms. Mckenna wrote back to the bar stating that she had not quit and subsequently brought an Application before the Human Rights Tribunal of Ontario for discrimination in employment on the basis of sex, which includes a prohibition against discrimination due to pregnancy.
The Adjudicator found that both the personal and corporate respondent, Mr. Chartrand and Local Heroes Stittsville, regarded Ms. McKenna’s pregnancy as “inconsistent with their branding efforts and that her presence at work was an inconvenience that could be dispensed with”. Further, the Adjudicator made clear that though the law does not require that an Applicant’s pregnancy be the sole reason for ending her employment to find a violation of the Human Rights Code in this case it was more likely than not that Ms. McKenna’s pregnancy was the sole reason for ending her employment.
Ultimately, both the bar and the manager, Mr. Chartrand, were found joint and severally liable. The tribunal awarded payment of $2,848.00 to cover Ms. McKenna’s lost income, $17,000.00 to cover injury to her dignity, feelings and self-respect and instructed the personal respondent and any other managerial staff to complete an on-line human rights training course. In determining the award for injury to dignity feelings and self-respect the Adjudicator reviewed a number of decisions where pregnancy was a factor or the sole reason for terminating employment, the awards had a range between $10,000.00 - $20,000.00.
Lesson for Employers
Employers must recognize that if a termination or any form of discipline is based in whole or even in part on a protected ground under the Ontario Human Rights Code that the Human Rights Tribunal of Ontario will find against the employer and has the authority to impose a significant award. Further, employers ought to evaluate whether changes, even if made for business reasons, infringe on any individual’s right to equal treatment with respect to the aforementioned Code grounds and subsequently evaluate the necessity of the change and/or ways to accommodate if there is discrimination.
In addition, employers should be aware that the Applicant could have brought this matter before the traditional court system in connection with an allegation of constructive dismissal.
Members of the CCP Team regularly represent employers faced with allegations of discrimination at the Human Rights Tribunal of Ontario, the Courts and the Labour Relations Board. Consider consulting CCP counsel if you have any questions about this case, if you are implementing a change that you think may be discriminatory under the Ontario Human Rights Code or if your organization is facing allegations of discrimination.
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