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Women should not have to choose between their own health, or the health of their baby, and their jobs, housing or being able to take part in a service. For example, a human rights tribunal noted the importance of accommodating breastfeeding women at work:
In their working lives, women face particular challenges and obstacles that men do not. A woman who opts to breastfeed her baby takes on a child-rearing responsibility which no man will ever truly face. In order for a working mother to bestow on her child the benefits that nursing can provide, she may require a degree of accommodation. Otherwise, she may end up facing a difficult choice that a man will never have to address. On the one hand, stop nursing your child in order to continue working and making a living for yourself and your family. On the other hand, abandon your job to ensure that your child will be breastfed.[72]
The same type of analysis applies to pregnant women.
Under the Code, employers and unions, housing and service providers have a legal duty to accommodate the needs of women based on pregnancy, unless it would cause undue hardship. Most accommodations are not difficult, and should not cause a major burden for those responsible. The goal of accommodation is to help everyone have equal opportunities, access and benefits. Failure to accommodate may lead to a finding of discrimination under the Code.
6.1. Procedural and substantive duties
The duty to accommodate has both a procedural component (the process) and a substantive component (the accommodation provided). Both are equally important.[73]
The procedural duty involves the considerations, assessments and steps taken to respond to an accommodation need. The courts have said, “a failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the ‘procedural’ duty to accommodate.”[74]
Example: A woman was hired as a live-in caregiver for two young children. When her employment started, she told her employer that she was unexpectedly pregnant, and was suffering from nausea, but emphasized that she still wanted the job. The next day, the employer decided not to proceed with her job, citing concerns about how the caregiver would deal with the physical demands of the job, given that she was experiencing significant nausea. A human rights tribunal found that the employer did not start an adequate process for exploring whether accommodation was possible without undue hardship.[75]
The substantive duty is about the appropriateness or reasonableness of the chosen accommodation as well as the reasons for not providing an accommodation, including proof of undue hardship.[76]
6.2. Principles
The duty to accommodate is made up of several principles, including respect for dignity, individualization, integration and full participation.
6.2.1. Respect for dignity
Human dignity involves many factors, including respect for pregnant women and their self-worth as well as their physical and psychological integrity and empowerment. It is also about privacy, confidentiality, comfort, autonomy, individuality and self-esteem.
Dignity includes considering how accommodation is provided and the person’s own participation in the process. Organizations responsible for providing accommodation should consider the different ways people may need accommodation in their workplace, housing environment or when accessing a service.
6.2.2. Individualization
There is no set formula for people who might need accommodation because of pregnancy or breastfeeding. Each person’s needs are unique and must be considered when an accommodation request is made. While some accommodations may only meet one person’s needs, organizations will find that many of the changes they implement will benefit others as well.
6.2.3. Integration and full participation
Employment, housing, services and facilities should be designed, and may need to be adapted, to accommodate the needs of pregnant women in a way that best promotes their integration and full participation.[77] Segregated treatment is less dignified and is unacceptable unless it can be shown to be the best way to achieve equality in the circumstances.[78]
6.2.4. Inclusive design
Achieving integration and full participation requires barrier-free inclusive design up front as well as removing existing barriers. Good inclusive design will minimize the need for people to ask for individual accommodation. The Supreme Court of Canada has been clear that systems must be designed to be inclusive of all persons and to reflect differences among individuals. Standards should provide for individual accommodation, to the extent that this is reasonably possible.[79]
Organizations should design inclusively for the needs of pregnant women when they develop or change policies, programs, procedures, standards, requirements and facilities. They should not create new barriers.
Example: A large retail outlet designs its facilities to include a nursing room with comfortable chairs for women who wish to breastfeed their children in private. It also creates a breastfeeding policy, and educates staff on women’s rights to breastfeed their children throughout the store.
6.3. Providing appropriate accommodation
Special needs during the pre-natal and post-natal period can be accommodated, short of undue hardship, in a variety of ways. The OHRC’s position is that the duty to accommodate requires determining and taking the most appropriate accommodation, unless it causes undue hardship. The most appropriate accommodation is one that most respects the dignity of the individual, meets the individual’s needs, promotes inclusion and ensures confidentiality.
Accommodation should result in equal opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges enjoyed by others, or it may be proposed and adopted to achieve equal opportunity. People should not experience disadvantage owing to needs related to prohibited grounds of discrimination. Where the most appropriate accommodation would result in undue hardship, the accommodation provider should consider next-best, phased-in or interim accommodation.
6.4. The accommodation process
Accommodation is a multi-party process. Everyone should work together cooperatively and respectfully to develop and implement appropriate accommodation solutions. There is a duty to enter into a cooperative and respectful dialogue to develop, implement and maintain appropriate accommodation. In the workplace, this involves the employer, the employee, and possibly the workplace bargaining agent, if any.
Where an employer contracts with an outside company that provides assistance in addressing employees’ accommodation needs, the employer is still responsible if the outside company does not appropriately manage the accommodation request.[80]
Where a pregnant or breastfeeding woman has accommodation needs, she is responsible for clearly informing the employer, housing provider or service provider that she needs accommodation and what accommodation she needs. While women are generally required to make their needs known, an employer, service provider or housing provider can also tell a woman that accommodation is available if she needs it.
Where necessary, the pregnant woman should provide documentation from professionals about her accommodation needs. Pregnant women should not be asked to give documentation of changes that are obvious or normal and natural to any pregnancy, such as the need for more frequent washroom breaks, or a reduced ability to stand for lengthy periods of time in the later stages of pregnancy, or the need to attend regular medical appointments. Breastfeeding women should not be asked to provide medical documentation to prove the need to breastfeed their children.[81]
Accommodation providers should accept accommodation requests in good faith, unless there are legitimate reasons for acting otherwise. Depending on the circumstances, employers, housing and service providers are entitled to request sufficient information from the employee to make the accommodation, and may seek expert advice or opinions where needed.
The accommodation provider should bear the cost of any medical information or documentation needed in the accommodation process.
The person seeking accommodation should take part in discussions about possible accommodation solutions, and cooperate with any experts whose help is needed to manage the accommodation process.
The accommodation provider must take an active role in making sure that different approaches and possible accommodation solutions are explored.
Once the employer, landlord or service provider is aware of what accommodation is needed, they have a duty to take the necessary steps to accommodate the special needs and circumstances of the pregnant employee, short of undue hardship, and to do so in a timely way.[82]
Everyone involved in the accommodation process has a duty to cooperate to the best of their ability. In some cases, an organization may have met its procedural and substantive duty to accommodate where the person did not sufficiently take part in the process, refused or otherwise could not take part at all. However, during the accommodation process, if there is confusion about a woman’s needs or whether accommodation is still needed, an organization must ask before deciding that she has not taken part.[83]
Organizations should also consider if there are any disability or other Code-related factors that may prevent the person from taking part in the process. The organization may need to accommodate these factors as well. They should also consider whether there is a need to adjust the accommodation because it is not working.
6.5. Forms of accommodation
It is important to keep in mind that each woman’s experience of pregnancy is unique, and symptoms and needs will vary. In employment, employers should not expect a pregnant woman to “tough it out” because others in similar positions have not requested accommodation. And they should not impose accommodations on pregnant women (such as modified duties, hours or alternative work) who are not requesting them, because of assumptions about pregnancy.[84]
The need for accommodation based on pregnancy and breastfeeding will most often arise in workplace situations, but it may also happen in housing and service situations. Some examples of accommodation are:
- An employee may be temporarily relocated to another work station or location or re-assigned to alternative duties
- A flexible work schedule can be provided to accommodate medical appointments, including treatment for infertility, as well as breastfeeding needs[85]
- Where required, a quiet, private environment can be provided for pregnant employees to rest during breaks
- Chairs can be provided for people who need to sit (for example, at work[86] or in a service environment)
- Breaks can be allowed as necessary. Employees who require breaks, such as for pumping or breastfeeding, or for eating more often to counteract pregnancy-related nausea or due to gestational diabetes, should normally be accorded those breaks, and not be asked to forgo normal meal breaks as a result, or work additional time to make up for
- the breaks, unless the employer can show undue hardship. Similarly, pregnant women should not have their time docked or be otherwise penalized for using the washroom more often
- A supportive environment can be provided for a woman who is breastfeeding. Accommodation may mean allowing a caregiver to bring the baby into the workplace or a service environment where children do not typically attend (such as a college or university class) to be breastfed, making scheduling changes to permit time to express milk or breastfeed or to reach home in time to breastfeed, and providing a comfortable, dignified and appropriate area so that a woman can breastfeed, or express and store breast milk. In some special cases, it may involve permitting a leave of absence from work.[87] A supportive environment can generally be created with minimum disruption.
6.6. Undue hardship
Accommodation providers are not required to put in place accommodations that would amount to undue hardship. The test for undue hardship is set out fully in the OHRC’s Policy and guidelines on disability and the duty to accommodate.[88] The same standard applies to all grounds of the Code, including pregnancy.
The Code lays out three considerations in assessing whether an accommodation would cause undue hardship. The three factors are:
- Cost
- Outside sources of funding, if any
- Health and safety requirements, if any.
No other considerations can be properly considered. Factors such as business inconvenience, employee morale or customer preference for receiving service from non-pregnant women, will not justify discrimination.[89]
The onus of proving that an accommodation would cause undue hardship lies with the accommodation provider. The evidence needed to show undue hardship must be real, direct, objective, and in the case of costs, quantifiable. A mere claim without supporting evidence that the cost or risk is “too high” based on impressionistic views, paternalistic attitudes or stereotypes will not be enough.[90]
Example: When a female restaurant server reached the later stages of her pregnancy, her employer asked her to switch over to bartending, a lower-paying role, for the rest of her pregnancy, because they were concerned about the safety of her fetus. She refused, and offered to provide a doctor’s note concerning her fitness to continue as a server. In response, the employer asked the employee to sign a waiver of any liability on the part of the employer if she was injured at work during her pregnancy. A human rights tribunal found that the employer had discriminated based on sex and pregnancy.[91]
In most cases, accommodations for needs related to pregnancy will not require significant expenditures. Instead, they involve increasing the flexibility of policies, rules and requirements. This may involve some administrative inconvenience, but inconvenience by itself is not a factor for assessing undue hardship.
If an accommodation is likely to cause significant health and safety risks, this could be considered “undue hardship.” The Code recognizes that the right to be free from discrimination must be balanced with health and safety considerations. Organizations have a legal obligation to protect the health and safety of all their employees, clients, tenants and others.[92] They should consider whether changing or waiving a health and safety requirement or providing accommodation might result in a serious health or safety risk. For the health and safety concern to amount to undue hardship, the concern must be genuine and the risk must be significant enough that it outweighs the benefits of the requested accommodation.
An organization should look at:
- The nature and severity of the risk, the likelihood of it happening, and who might be affected.
- If the risk only involves the person asking for accommodation, would the person be willing to assume it?
- How does the risk compare to other risks allowed within the organization or already tolerated in society as a whole?
Organizations must try to mitigate risks where they exist. The amount of risk that exists after accommodations have been made and precautions have been taken to reduce the risk (short of undue hardship based on cost) will determine whether there is undue hardship.[93]
Example: A customer service associate worked behind the front counter
a safety issue. As a result, the employee was forced to ask for part-time hours. The HRTO found that the employer failed to accommodate the employee because it took no steps to measure the space behind the counter or test out a chair or stool. It also failed in its procedural duty because it did not review and respond to her doctor’s note, or discuss with the employee how to accommodate her.[94]
[72] Cole v. Bell Canada, 2007 CHRT 7, CHRR Doc 07-206 at para. 61.
[73] See Meiorin, supra note 61 at paras. 65-6 and Grismer, supra note 69 at paras. 22 and 42-45. See also Adga Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC), at para. 107
(ON SCDC).
[74] Adga Group Consultants, ibid., at para. 107.
[75] Mazuelos v. Clark, 2000 BCHRT 1, 36 C.H.R.R. D/385; See also Purres, supra note 15; Williams v. Hudson's Bay Co., 2009 HRTO 2168 (CanLII).
[76] In Gourley v. Hamilton Health Sciences, 2010 HRTO 2168 (CanLII), at para. 8, the HRTO stated: “The substantive component of the analysis considers the reasonableness of the accommodation offered or the respondent's reasons for not providing accommodation. It is the respondent who bears the onus of demonstrating what considerations, assessments, and steps were undertaken to accommodate the employee to the point of undue hardship…”
[77] Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241.
[78] Ibid. The Supreme Court stated that “integration should be recognized as the norm of general application because of the benefits it generally provides” (at para. 69). However, the Court found that in Emily Eaton’s circumstances, segregated accommodation was in her best interests. The Court was of the view that this was one of those unusual cases where segregation was a more appropriate accommodation.
[79] Meiorin, supra note 61.
[80] Williams, supra note 75.
[81] Cole, supra note 72 at para. 77.
[82] In Turnbull v. 539821 Ontario Ltd. (c.o.b. Andre's Restaurant), [1996] O.H.R.B.I.D. No. 20 [QL], the Board of Inquiry found that where the employee’s pregnancy was affecting her ability to do the duties of her job, the employer had an obligation to accommodate her even if she did not specifically request accommodation.
[83] In Gonneau v. Dennninger, 2010 HRTO 425 (CanLII), a woman could not come into work due to pregnancy-related complications. The HRTO found that the employer breached the Code by issuing a Record of Employment without asking the woman to clarify whether she intended to come back to work or needed further accommodation. However, the HRTO noted that the applicant had contributed to the situation by not keeping her employer advised of her status and intentions and had therefore failed to fulfill her part in the accommodation process. This affected the amount of damages the woman was awarded because of the discrimination.
[84] For example, in Vaid, supra note 50, the HRTO stated, “If a woman is pregnant and requires accommodation in the performance of her job duties, it is her responsibility to come forward to request such accommodation. It is not the employer’s role to question a pregnant employee about whether she can perform certain duties, particularly in the absence of an indication of any actual difficulty in performing such duties,” at para. 23. See also Knibbs v. Brant Artillery Gunners Club Inc. 2011 HRTO 1032 (CanLII).
[85] Cole, supra note 72. The Canadian Human Rights Tribunal found that an employer violated the Canadian Human Rights Act when it failed to respond appropriately to an employee’s request for schedule adjustments that would allow her to continue to breastfeed her son.
[86] See Williams, supra note 75; Purres, supra note 15.
[87] See Carewest v. Health Sciences Association of Alberta (Degagne Grievance) (8 January 2001), [2001] A.G.A.A. No.2 (J.C. Moreau). A labour arbitrator found that a woman had been discriminated against when her employer did not accommodate her breastfeeding needs to the point of undue hardship. The grievor, who was on maternity leave, requested an extension of her leave to meet her breastfeeding needs. The employer was willing to have the grievor express or pump milk during her scheduled breaks or lunch hour; but this was not practical for the grievor because of her particular breastfeeding history. The arbitrator ruled that the employer had failed to make a sufficient effort to seek solutions to accommodate the woman, and that it had not accommodated her to the point of undue hardship.
[88] OHRC, Policy and guidelines on disability and the duty to accommodate (2000) online: OHRC www.ohrc.on.ca/en/policy-and-guidelines-disability-and-duty-accommodate.
[89] In Shinozaki, supra note 17, the HRTO stated, “The applicant submits, and I agree, that the clear inference to be drawn from [the owner’s] comments is that she wanted to have “sexy-looking” massage therapists whose physical appearance [the owner] thought would appeal to customers; and that the applicant’s pregnancy made her less desirable as an employee” (at para. 30). In Middleton v. 491465 Ontario Ltd. (1991), 15 C.H.R.R. D/317 (Ont. Bd. of Inq.), the complainant, a waitress at a strip bar, was fired when she was four months pregnant. The Board of Inquiry dismissed the argument that it might be a bona fide requirement for a waitress at such a restaurant to not be pregnant, as it might impair the enjoyment of the patrons.
[90] In Gareau v. Sandpiper Pub, 2001 BCHRT 11, CHRR Doc. 01-040e, the Tribunal stated at para. 49 that:
It was not appropriate for the Respondents to impose their views of the risks associated with working as a server while pregnant on the Complainant in the absence of any objective basis for that assessment. That was an assessment more appropriately made by the Complainant. Nor was it appropriate for the Respondent to impose on her a requirement that she waive rights enjoyed by other employees merely because they disagreed with her assessment.
See also Purres, supra note 15; Graham, supra note 7; Vaid, supra note 50.
[91] Gareau, ibid.
[92] For example, see the Occupational Health and Safety Act, S.O. 1990, c.H. O.1.
[93] For more information about undue hardship, see OHRC, Policy and guidelines on disability and the duty to accommodate, supra note 8.
[94] Purres, supra note 15; See also Williams, supra note 75; Graham, supra note 7.