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Employer Discriminated Despite Not Knowing About Pregnancy
Turnbull v Edmonton Pipe Trades Educational Fund o/a Alberta Pipe Trade College, 2021 AHRC 172 is a new Alberta Human Rights Tribunal decision where the employer clearly terminated the employee due to a request for accommodation, but argued that it was not discrimination due to pregnancy because the employer did not know the employee was pregnant.
The AHRT disagreed, finding that it was a discriminatory termination, and that intention to discriminate on that particular ground was not required.
The complainant was awarded $35,000 in general damages, plus lost wages.
The key facts in this case are as follows:
- The complainant employee had made sexual harassment allegations about a co-worker to her boss more than a year prior to making the relevant human rights complaint, and these were not dealt with to her satisfaction
- The complainant employee was diagnosed as being pregnant on May 8
- The next day, she met with her supervisor and indicated she had a medical issue that required accommodation, including a reduced workload and no morning teaching duties
- Her supervisor told her to speak to the department head, so she did, and told him the same thing. At the meeting with the department head, there was a brief discussion about the lifting restriction and the possibility of a leave of absence, but nothing was resolved
- The complainant met with the department head again the day after that, and he terminated her employment
- The employer admitted that the reason it terminated her employment was because it did not want to meet the accommodation request
- The employer did not investigate the requested accommodations. The employer assumed without asking that the complainant would not have agreed to a reduced number of paid hours, and assumed it would need to hire an additional staff member to lift blueprints, without considering other options like purchasing a cart
- The complainant suffered significant emotional anguish as a result of this termination of employment, which lasted for years thereafter
- The employer had intended to terminate the complainant’s employment at the end of that school year for non-discriminatory reasons
Analysis / Conclusion
The employer argued that, because the complainant had cited a specific ground of discrimination (pregnancy), the employer would have to have had specific knowledge of that condition in order to have discriminated against her on that basis.
The tribunal disagreed, finding as follows:
 The respondent chose not to make further inquiries about the nature of the medical condition or possible accommodation. It cannot hide behind its own inaction to say that the wrong protected ground was cited. A “medical condition” could relate to several protected grounds, including physical disability, mental disability and, as here, gender (pregnancy). The fact that the respondent did not know exactly what protected ground the medical condition related to does not insulate it from liability for discrimination when it knew that a protected ground was involved and decided to terminate her because she asked for accommodation.
The AHRT found that the employer had not established an undue hardship to accommodate, in part because it had not even considered or asked about accommodation options.
The AHRT found that discrimination had occurred. In coming to a damages amount for pain and suffering, the AHRT noted that the manner of termination was harsh and unfeeling, and the previous sexual harassment complaint she had made was the objective and subjective context for the act of discrimination dealt with in this case. The AHRT awarded the following:
- $35,000 in damages for injury to dignity (general damages);
- Lost wages for 7 weeks, being the period between when the employer terminated her employment for discriminatory reasons and when the employer would have terminated her employment for non-discriminatory reasons in any event.
This case is quite strange. It is very rare for an employer to so blatantly admit that it has terminated someone’s employment for requesting accommodation.
The award of $35,000 in general damages is also quite high in Alberta, where there are only 1 or 2 human rights cases with a higher general damages award.
Overall I am not surprised with the outcome of the case. The employer’s position is interesting from an academic point of view, but for policy reasons the AHRT of course would not allow an employer that knew it was acting in a generally discriminatory way to escape liability just because it did not know the complainant was pregnant. I think the high general damages award was likely, in part, a punishment for taking this position.
Bow River Law
Joel Fairbrother is an employment lawyer serving Alberta. He is a founding partner at Bow River Law LLP, based in Calgary, Alberta.
Bow River Law is an Alberta employment law firm, specializing in Alberta employment law, Alberta human rights (discrimination) and Alberta labour law.
A published copy of Turnbull v Edmonton Pipe Trades Educational Fund can be found at the following link: https://www.canlii.org/en/ab/abhrc/doc/2021/2021ahrc172/2021ahrc172.html?autocompleteStr=2021%20AHRC%20172%20&autocompletePos=1