Fired for being pregnant

B.C. Human Rights Tribunal awards former waitress more than $14,000 after she was fired because of her pregnancy
By Todd Humber
|employmentlawtoday.com

A former waitress in British Columbia who claimed she was fired for being pregnant has been awarded more than $14,000 by the British Columbia Human Rights Tribunal. Brenda Descoteau started working for the Wakeside restaurant in Crofton, B.C., on April 3, 2003. She was 18 at the time, it was her first full-time position and she was excited about the prospects of working at what was intended to be an upscale establishment.

When she started at Wakeside, she was working a second job at a fast-food restaurant. When she found working at two locations to be too much, she asked Ralph Pare, the owner and her boss, if she could quit her other job and work more hours at Wakeside. Pare said she could have more hours, and Descoteau quit her other job on April 24, 2003. She said things went relatively well for her at the restaurant.

There were three incidents when Pare spoke to her about work-related issues. First, he questioned her about an incident where an underage person was served drinks in the restaurant. Descoteau was present in the restaurant, but was not working at the time. The waitress who served the underage person tried to blame Descoteau. But after Descoteau explained to Pare what had happened, he said nothing further.

On another occasion, Pare criticized her for the clothes she was wearing at work. She accepted his criticism, modified the way she dressed and the issue did not come up again. The third incident happened when Descoteau was off work. While still underage, she went into a pub located in the same building as the restaurant.

When Pare found out, he reprimanded her and asked her to write a letter of apology to the owner of the pub and the waitress who had served her, which she did. According to Descoteau, at no time did Pare ever express concerns about her actual work performance. In her opinion, the caliber of her work was better than that of her co-workers. On June 18, 2003, Descoteau found out she was pregnant.

About a week later, she told Pare and his wife. While the wife was happy for her, Descoteau noted that Pare himself said very little. On July 6, after a busy shift at work, Pare told Descoteau he wanted to speak with her privately.

He told her he was ter- minating her employment because things were not working out. She was shocked and devastated at the news.

‘Scared to death’

Descoteau and her fiancé had recently purchased a home, and they needed her income. As Descoteau said in her evidence, she was “scared to death” because she was 18, pregnant and had just bought a house. She said she asked Pare repeatedly during the meeting why she was being let go, but he only repeated that things were not working out.

When she began to cry, he promised her he would give her a good reference letter to help her find another job. Descoteau’s fiancé said she became withdrawn and depressed after she was fired and that the firing put a strain on their relationship, and she was worried about the effect her stress would have on the baby.

According to Descoteau, shortly after she was fired and unbeknownst to her, Pare found out she was considering making a claim for severance pay and a human rights complaint. On July 8, she called him about getting her record of employment, which she needed for her employment insurance claim. During the conversation, he told her what he had heard and said, as a result, he would not give her a reference letter.

He also told her that her work performance had not been good enough and that, for reasons he would not divulge, he had concerns about her trustworthiness. He also said he had been frustrated with her wanting to sit down while at work and that her health problems had gotten in the way of her job. Descoteau confirmed that she sat down at work on occasion because of pregnancy-related nausea. On Sept. 4, 2003, with the help of the employment standards branch, Descoteau reached a mediated settlement for her severance pay. On the same day, Pare handed over her record of employment.

Unable to find other work

Because Descoteau felt isolated and devastated about being let go, she did not being looking for work until August 2003. She said she dropped off nearly 50 resumés looking for work as a waitress or in retail, without success. She told perspective employers that she was willing to work part- or full-time, days or nights.

But by that point her pregnancy was visible and, while no one explicitly said so, she believed she could not find work because no one wanted to hire a pregnant woman. She stopped looking for work on Nov. 1, 2003. She eventually received backdated EI benefits from July 13 and continued to receive those benefits until Jan. 9, 2004. She then switched to maternity benefits, which she received until July 10, 2004. She gave birth to her son in February 2004.

Pregnancy is sex-based discrimination

Tribunal member Kurt Neuenfeldt said it is a well established principle that discrimination in employment, based on pregnancy, is discrimination on the basis of sex and that such discrimination is prohibited under s. 13 of B.C.’s

Human Rights Code

.

“Where a complainant’s evidence, if believed, and without further evidence, supports an inference that it is more likely than not the conduct of a respondent was discriminatory, a

prima facie

case of discrimination is established,” wrote Neuenfeldt in the decision. “The burden then shifts to a respondent to provide evidence that the prohibited ground was not a factor in its actions or that there was a

bona fide

occupational requirement for its actions.”

In this case, Pare did not show up for the hearing nor did anyone represent him. Pare personally declared bankruptcy on Nov. 14, 2003. So while the proceedings against Pare himself were stayed, the tribunal allowed proceedings to continue against Wakeside because there was no suggestion that it had made an assignment into bankruptcy. (It’s not clear from the decision if the restaurant was still in business or if it had closed, but no one representing Wakeside appeared before the tribunal.)

Neuenfeldt said Descoteau’s evidence “clearly showed” that her pregnancy was a major factor in Pare’s decision to fire her.

What she got

The tribunal awarded Descoteau:

•$6,000 in lost wages for the period of July 13, 2003, to Nov. 1, 2003;

•$2,760 to compensate for the amount by which her EI maternity and parental leave benefits were reduced by reason of her early termination;

•$4,000 for injury to dignity, feelings and self-respect; and

•$1,500 for the retaliation, when Pare refused to provide her a reference letter and suggesting he would raise issues about her trustworthiness.

After the ruling, Descoteau, who is now studying to be a nurse, said she felt great.

“It really, really took a toll on my confidence wondering if it was my fault, trying to figure out what happened and now I feel great that I wasn’t wrong,” she told the Canadian Press.

But since Pare declared bankruptcy and sold the restaurant, there are some questions as to whether she’ll ever get a penny.

“If I get it, I get it,” she said. “If I don’t, I don’t. It wasn’t about the money. I hope he’s learned his lesson and I hope other people take it into consideration.”

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