Pregnancy discrimination remains an issue.

• Author: Mckay-Panos, Linda

Whenever I teach undergrad students about gender discrimination, they are often quite shocked to discover that as recently as the 1970s, there was a Supreme Court of Canada (SCC) ruling that found that discrimination on the basis of pregnancy was not a form of gender discrimination (See: Bliss v Canada (Attorney General), [1979] 1 SCR 183 (Bliss)). However, the SCC reversed itself in Brooks v Canada Safeway, [1989] 1 SCR 1219 (Brooks). Afterward, protection from discrimination on the basis of pregnancy was clearly provided in human rights law across Canada. Although an entire generation has grown up with the understanding that women cannot be discriminated against on the basis of pregnancy (e.g., in employment, rental accommodation or services customarily available to the public), there are indications of incidents involving pregnancy discrimination in today's Canada.

In Brooks, the SCC stated unequivocally that: "discrimination on the basis of pregnancy is discrimination on the basis of sex" and that the decision in Bliss, which had arrived at the opposite conclusion, was inconsistent with the SCC's current approach to interpreting human rights legislation in subsequent cases, and should no longer be followed.

Since Brooks was decided, all human rights legislation across Canada protects from pregnancy discrimination, which is considered to be a form of gender (sex) discrimination. For example, the Alberta Human Rights Act, RSA 2000 C A-25.5 was amended to add the following:

44(2) Whenever this Act protects a person from being adversely dealt with on the basis of gender, the protection includes, without limitation, protection of a female from being adversely dealt with on the basis of pregnancy. There are some situations where it is a bona fide (good faith) occupational requirement that a worker not be pregnant. In that case, the employer would have to show that the woman's pregnancy could not be accommodated to the point of undue hardship. For example, if a woman's occupation involved working with chemicals that could endanger her and the foetus, the employer would have to show that it could not move the pregnant employee to a safer job without experiencing undue hardship (e.g., excessive cost to the workplace).

After the SCC ruled and after provincial and federal human rights legislation was amended, while one might believe that pregnancy-related human rights complaints would increase for a period of time (as women and employers were made...