Nova Scotia’s Human Rights Commission has ruled that a law firm, which fired a paralegal who had to terminate her pregnancy because of a medical issue, discriminated against her on the basis of sex.
The woman, identified as A.B., was hired to work at at law office (identified as C.D. Law) on June 25, 2018, as a paralegal. (Though there is no publication ban on this case, the media was asked to respect the privacy of the complainant.)
She became pregnant and let her employer know her due date was Sept. 21, 2019. By late February 2019, some medical complications arose and she needed to attend some medical appointments during regular office hours.
As the pregnancy evolved, both A.B. and the law firm understood and discussed the challenges of her pregnancy, the issue of pregnancy termination and the taking of time off. Those discussions initially included how her absence might be managed if the child was born, and later focused on her physiological and psychological responses to the termination of her pregnancy.
The pregnancy was terminated on April 23, 2019, and A.B. was off work effective April 12. She never returned to work and was terminated on May 6 with an effective date of May 17, 2019.
On July 2, 2019, A.B. found other employment as a paralegal. On Aug. 20, 2019, she filed a human rights complaint at the Nova Scotia Human Rights Commission alleging she had been discriminated against on the grounds of sex (pregnancy) and mental disability by C.D. Law.
Time off discussions
The complaint largely focused on what happened after April 16, 2019, the date A.B. and the firm discussed the time off related to the termination of the pregnancy.
At that time, it was common knowledge between the worker and employer that she had been given medical advice about terminating her pregnancy. She decided to go that route.
While both parties understood she would need time off to recover, there were two uncertainties. First, there was no set date for the termination. Second, C.D. Law and A.B. could not agree on how much time off might be appropriate.
The employer suggested one month, while A.B. felt she could not afford to be off that long and was thinking “two weeks maybe.”
Empathetic employer sought certainty
The employer wanted certainty for the business, and noted that A.B. was having difficulty concentrating on her work. The firm relied heavily on the work of its paralegals.
On that same day, April 16, CD Law created a record of employment (ROE) identifying April 12 as her last day worked. It fixed an anticipated return date of April 29 — effectively the two weeks suggested by the employee.
The employer said, via email to the worker:
“We do not have short term disability, only long term disability. Employment insurance is utilized for short term disability. So, I have issued an ROE for you from Monday, April 15 to Friday, April 26, with a return date of Monday, April 29th.”
“I want you to know that I really feel this will help you get through this time and come back with a fresh perspective. I encourage you to seek counselling to help you through it. As I said, we have benefits for exactly this reason, so take advantage of it. Take care and I will see you on April 29th.”
C.D. had personal experience with an unproductive pregnancy and believed she understood both the physiological and psychological kinds of things A.B. would be facing in the near term.
Termination of pregnancy
The pregnancy was terminated on April 23, 2019. The woman received a medical note from the health centre that performed the procedure recommending she be off work until April 30, 2019.
Unfortunately, there were medical complications. It required two courses of antibiotics, and A.B. let her employer know by email about her status and the fact she had a medical appointment set for April 29 to perhaps get more antibiotics.
She also said she expected to be back at work on April 30. The employer responded, on April 29, and said “okay.”
On April 29, the doctor put her off work for another week. A.B. told the law firm “I will be back soon and will be the old (A.B.) that you first hired.”
The employer responded and said “Okay, thanks for letting me know. I’ll issue you an amended ROE (or a new one!), I’m not sure what is required. Looking forward to having you back.”
Termination took a mental toll
The return to work was set for May 6. But A.B. said the termination of the pregnancy was “mentally a lot harder than I expected. I was numb crying.” She was put on antidepressants.
On May 5, she wrote to her employer to state she would not be returning on May 6 as planned.
“My mental health is not in a very good place,” she said, and noted she was trying to get in touch with her family doctor to extend her leave. She planned to attend meetings at the health centre to help deal with the loss of her baby.
“I will keep you posted and let you know what my doctor says as soon as I get in touch with him,” she said.
She later obtained a note stating she would be off from May 6 to June 17, 2019. Three years later, by the time of the hearing in December 2022, A.B. said she still hasn’t “got to the end of that yet” in discussing the termination.
This remained the case even though she did give birth to a healthy child in between that time.
The employer’s response
The reply from the employer to A.B.’s May 5 note was “sharp,” the tribunal said. On May 6, it said:
“I was waiting to hear from you last week regarding your medical condition. You did not provide me with any explanation as to your diagnosis or prognosis which, as your employer, I am entitled to know so that I can plan. When I didn’t hear from you and you had promised to be back today I was expecting you back.”
The law firm said the “last minute” email showed a lack of respect for the firm and the lawyers.
“I know you have to look out for yourself, but I have to look out for my business. I wanted to provide you with as much time for medical/bereavement as possible. Legally I am only required to provide you with 1 week bereavement leave which you have already had. In fact, the last 3 weeks have served as both medical and bereavement leave. I understand that you are having a tough time dealing with this, but I will not be able to keep the position open for you. I’m sorry it has come to this, but I simply cannot continue with an employee who has become unreliable and disrespectful by not providing me with timely notice, updates on your condition and your expected return to work.”
A.B. was terminated that same day, which the tribunal noted was still a week short of the one month leave initially proposed by the employer.
The tribunal’s decision
The tribunal noted that the employer initially was very supportive of A.B.
But, because her boss had gone through a similar situation, she also may have “chose to define (A.B.’s) situation and needs according to (her) own standards.”
Nobody contested the fact that, on May 6, A.B. was not mentally fit to perform the work of a paralegal.
“I find that she was not mentally fit to perform her job because of the continuing and persistent psychological effects related to the termination of the pregnancy,” it said.
Duty to accommodate
Once it became apparent A.B. was not able to recover from her pregnancy to resume her employment, CD Law was obligated to accommodate her to the point of undue hardship. That could have included finding a temporary paralegal to help short-term or having the lawyers at the firm “work differently” for a time, it said.
It called the decision to terminate A.B. a “hasty overreaction” that was also discriminatory.
The employer argued that grief is not a protected ground under human rights legislation. Since A.B. was not pregnant at the time of her termination, it was not related to discrimination on the basis of sex. But the tribunal disagreed with the characterization that the pregnancy was over on May 6.
The tribunal also paused to comment on the employer’s position that A.B. had used her full bereavement leave by May 6.
“I am not comfortable with the apparent assumption that all emotional or psychological consequences of having endured an unproductive pregnancy can be classified under the heading of ‘bereavement,'” it said. “I have difficulty assuming that the phenomenon of post-partum depression is properly contained within the idea of ‘bereavement.'”
The loss of a parent or adult child or spouse or partner could certainly initiate a bereavement, it said. But those kinds of losses were “fundamentally quite different” from the combined emotional and physiological loss of an early termination of a pregnancy.
The tribunal did not make an order for an award. It turned the matter back to parties to consider an appropriate remedy, taking into account the fact she found another job in July 2019.
The parties reached a settlement, and agreed the terms will remain confidential.
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See decision at https://humanrights.novascotia.ca/sites/default/files/ab_v_cd_anonymized_decision.pdf