THE QUESTION
One of the HR staff at our company recently asked me if I was planning to get pregnant soon. She was really casual about it, so I’m not even sure if it was on purpose, or if she was actually trying to dig for info. Regardless, is this legal? Should I be reporting this to someone?
THE FIRST ANSWER
Cynthia Lazar, lawyer and workplace investigator, Taylor McCaffrey LLP, Winnipeg
It is not illegal to ask an employee or job applicant if they plan to get pregnant, but it is ill-advised. Employers are prohibited from discriminating against existing employees (or job applicants) because of their sex. “Sex” includes sex-determined characteristics or circumstances, such as pregnancy, the possibility of pregnancy or circumstances related to pregnancy such as breastfeeding.
When your employer asks if you are planning to get pregnant, any subsequent decision made about your employment becomes suspect. Were you denied a promotion, kept off a particular project or refused a training opportunity because there was a better candidate, you were needed elsewhere or some other valid operational reason, or because the employer was concerned about potential disruptions caused by a maternity leave or a decision to stay home with a baby?
The employer may have reasons for these decisions unrelated to your family plans, but once the question is asked, especially by someone in HR, the seed of doubt is planted that the decision was discriminatory, and the employer is at risk of receiving a human rights complaint. A complaint puts the employer in the difficult position of proving that its decision was not influenced by a potential pregnancy.
You may consider reporting the conversation to a different HR person, a manager or your union, or emailing the HR person to say you were uncomfortable with the question. This creates a paper trail to prove the question was asked in case a suspect employment decision is made in the future.
THE SECOND ANSWER
Waheeda Ekhlas Smith, barrister and solicitor, Smith Employment Law, Toronto
I am sure that question surprised you, particularly coming from someone in a human resources capacity. Whether she was asking the question out of curiosity or whether she was trying to determine future staffing needs, the question was inappropriate and potentially discriminatory.
In Ontario, an employer is prohibited from discriminating against an employee on the basis of pregnancy. For a non-unionized employee, these protections are available under both the Employment Standards Act and the Ontario Human Rights Code, covering the individual before pregnancy, while pregnant, and returning to work following a leave.
So if you wish to become pregnant and also after you become pregnant, your employer is not permitted to penalize you. In other words, if you share your plan to become pregnant, announce your pregnancy, seek accommodation for pregnancy-related needs, and/or take maternity leave, your employer cannot act in reprisal against you through a demotion, restriction of employment opportunities, or outright dismissal. This protection continues when you return from maternity leave. Your employer has a statutory obligation to reinstate you to the position you had when you commenced leave or a comparable position if your original job no longer exists.
In the meantime, if you are feeling uncomfortable with the HR staff’s (or anyone else’s) questions regarding your future family planning, you may need to escalate it. This could mean reporting your discomfort to that HR staff member’s manager or to another manager you trust. Also, keep detailed notes about future incidents or comments.
Before approaching your company, I would encourage you to speak to an employment lawyer to discuss strategy and your options.
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Andrea Yu