Waitress Discriminated Against Due to Pregnancy
October 2, 2013
Ashley McKenna was employed as a part-time waitress at a sports bar. In July 2011, she became pregnant; however, she continued to work her regular three to five shifts per week at the bar without issue.
Then, in November 2011, new management took over the bar and shortly thereafter instituted a number of changes. One of the initiatives implemented by new management was a new dress code which required female staff to wear tight-fitting shirts. Ashley asked management if she could be excused from the new dress code, due to the fact that it would only serve to highlight her already visible pregnancy. Her manager agreed and Ashley’s next two shifts were status quo. However, following those two shifts, Ashley was not scheduled for any further shifts.
Ashley dropped by the bar and called many times to ask when her next shifts would be scheduled. However, she was told there was no work available, despite the fact that two new waitresses had been hired. Ashley found her persistent efforts to be demeaning and was perplexed by the fact that new waitresses had been hired. Ashley wrote her manager and asked if she had been terminated. Ashley received a reply stating that she had not been terminated, that her pregnancy was “irrelevant” to her employment and she was then offered her two shifts. After the two scheduled shifts, no further work was extended to Ashley and, within a month, she received a record of employment which indicated that she had resigned.
Ashley brought a human rights complaint alleging discrimination in employment on the basis of sex. Section 10(2) of the Human Rights Code specifies that the right to be free from discrimination on the basis of sex includes the fact that the individual is a woman or that she may become pregnant.
The adjudicator had no hesitation in finding that Ashley’s pregnancy was a factor in the decision to terminate her, particularly given the respondent’s perception that Ashley’s pregnancy was both inconvenient and inconsistent with the bar’s branding image. In fact, the adjudicator stated that he thought Ashley’s pregnancy was the only reason her employment ended. Ashley’s pregnancy, coupled with her reluctance to wear a tight uniform, was the reason why she was terminated and therefore, her employer’s conduct constituted discrimination, as they had violated her right to equal treatment in employment.
The Tribunal awarded Ashley lost compensation for the period she would have worked until giving birth and, more substantially, $17,000 as compensation for injury to dignity, feelings, and self-respect arising from the employer’s offensive conduct and indifference to her well-being.
McKenna v. Local Heroes Stittsville, 2013 HRTO 1117 (CanLII)
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