Is this legal ?

June 1, 2006 7:33 AM

Is it legal for an employer (supervisor, and owner of the company) to tell his female employees he expects to be told if they intend trying to get pregnant? This would be in Ontario, Canada.

Not in writing, obviously. This didn't happen to me, so I am unsure if it was said in a "this just came into my head and I'm opening my big mouth" sort of a way or an everyone-round-the-table-let's-discuss-expectations way. Or if it matters.

posted by anonymous to work & money (47 comments total)

I'm sure it is. Why wouldn't it be? If an employee's going to be taking pregnancy leave, they're going to have to fill that position temporarily. I'd hope my employees would tell me if they're trying to do something that'll mean they're off for 17 weeks.
posted by Jairus at 7:43 AM on June 1, 2006

No, if s/he said such a thing then that's a pretty clear case of discrimination. IANAL and I don't know much about Canadian law, but the US Dept of Labor, Women's Bureau has fought discrimination like this for a long time under the Civil Rights Act of 1964. An employer who even jokingly makes statments like this is opening him/herself up to a world of liability. Not to say it doesn't still happen.
posted by mattbucher at 7:45 AM on June 1, 2006

heh, 17 weeks. You kill me, Jairus. Women get a year of maternity leave in Ontario.
posted by GuyZero at 7:48 AM on June 1, 2006

If they intend to try and get pregnant? That seems very strange and wrong.

You don't have to disclose your life plans to your employer.
posted by agregoli at 7:51 AM on June 1, 2006

Did he tell his male employees he expects them to also disclose if they are trying to have a baby as well?

I would never disclose that to an employer. First of all, it may not happen right away, and you may be at risk if the employer decides to cut back and figures that since you'll be gone (since he knows you're trying, but not yet pregnant), he could let you go. Secondly, like I said, it may not happen right away, why would you want your boss and coworkers to know, especially if it turns into a painful struggle with fertility or something goes wrong? Thirdly, my body, my business. I would be appalled if an employer said that to me and it would be a clear sign that this is not a family-friendly company and perhaps I should start looking at other options if I intend to start a family.

And no, the position does not need to be filled temporarily, I have never seen that happen where I have worked (in the US).

However, I guess I haven't yet answered your question; I would very much assume this is a big fat no as to the question of legality.
posted by ml98tu at 7:52 AM on June 1, 2006

Why wouldn't it be?

My intentions are none of my employer's business, and this sounds like someone wanting an excuse to fire or otherwise treat badly any women who'd dare to get knocked up. It's certainly creepy.

Jairus's talk doesn't make any sense at all -- maybe he hadn't noticed, but pregnancy is not a short-term process, and there should be ample time during the course of the pregnancy itself to find a temporary worker or reassign duties. Your employer does not need advance notice several months before you even become pregnant.
posted by ROU_Xenophobe at 7:53 AM on June 1, 2006

Wait, I am an idiot. I thought it was a year, but when I looked it up, Jairus is right. I really thought it was alot longer. Hm. Ok, I found it.

You get 17 weeks of EI for maternity leave.

Parental leave "is a right that new parents have to take unpaid time off work when a baby or child is born or first comes into their care. Birth mothers who take pregnancy leave are entitled to up to 35 weeks' parental leave."

So, Jairus is more right than I thought, but it could still be a lot more than 17 weeks. Sorry about that. Also, fathers can take parental leave for up to 37 weeks, unpaid.

While it's probably a poor idea to require formal notification of people trying to get pregnant, I have to say that I always have known which co-workers were trying and which ones weren't. I mean, people talk about this stuff. Maybe he was just saying it in a "I wish my employees would be friends with me" way.
posted by GuyZero at 7:57 AM on June 1, 2006

According to this site (I think a canadian govt site), mothers only need to give a few weeks notice before the start of their leave. Also, fathers/parenting partners are entitled to leave ranging from 12 to 52 weeks. So unless the annoucement was extended to ALL staff members, this seems to be a pretty nice case of discrimination in the workplace, which of course would be illegal.

GuyZero - you raise a good possibility, but "expects to be told" is much different than wanting to be friendly with employees and have them feel comfortable enough to share such news. Making an annoucement about birth plans is certainly not the way to endear oneself to employees, especially female employees :)
posted by ml98tu at 8:02 AM on June 1, 2006

Sorry - making an annoncement that people must share birth plans is certainly not the way to endear oneself to employees, especially female employees :) Oops.
posted by ml98tu at 8:03 AM on June 1, 2006

It sounds thoroughly illegal to me. Call the Law Society of Upper Canada; they'll give you a 1-900 number (which will cost $6) to call for a lawyer referral. You can then get something like 1/2 hour of free legal advice from whoever you're referred to.
posted by dirtynumbangelboy at 8:04 AM on June 1, 2006

Check this out.

Brief synopsis:

AT WORK
interviews

It is illegal for an employer to ask you, "Are you pregnant?", "Do you have a family?" or "Do you plan to have a family?" during a job interview.

on the job

It is illegal to fire you, demote you or lay you off (even with notice) because you are or may become pregnant.

In some cases, an employer may be able to show real health or safety risks related to your pregnancy, or that meeting your special needs as a pregnant woman would be excessively costly. If so, temporary adjustments to your job may be necessary. However, the employer must show that these factors are real and in your best interests: this is a very high standard.

You have a right to be treated fairly at work without discrimination, that may have a negative effect on you, because you are or may become pregnant. If you are or are planning to become pregnant, you have the right to keep your job and not be denied benefits and opportunities such as:

* being promoted;
* getting training;
* being assigned to important or more challenging projects; or
* resuming your job after your pregnancy or parental leave.

posted by purephase at 8:04 AM on June 1, 2006

Presumably he has several months to make arrangements once someone is actually pregnant. To expect to be told of anything before conception is unreasonable and invasive.
posted by voidcontext at 8:13 AM on June 1, 2006

Looks like it's not legal. You only need to give two weeks notice for both pregnancy and paternal leave. If the person you are asking for has concerns, she can get more information from the Employment Standards Information Centre.


From the Ministry of Labour's Fact Sheets:

What if the employer does not follow the ESA?

If an employee thinks the employer is not complying with the ESA, he or she can call the Employment Standards Information Centre at 416-326-7160 or toll free at 1-800-531-5551 for more information about the ESA and how to file a complaint. Complaints are investigated by an employment standards officer who can, if necessary, make orders against an employer—including an order to comply with the ESA. The ministry has a number of other options to enforce the ESA, including requesting voluntary compliance, issuing an order to pay wages, an order to reinstate and/or compensate, a notice of contravention, or issuing a ticket or otherwise prosecuting the employer under the Provincial Offences Act.

posted by carmen at 8:15 AM on June 1, 2006

Like everything, this is a two-edged sword. A lot of employers here in Poland are wary of women in their mid-to-late 20s looking for a position with a work contract as a non-negligible number of women seek employment with benefits before attempting to have a child.
posted by jedrek at 8:19 AM on June 1, 2006

According to this great, plain-english PDF pamphlet at Community Legal Education Ontario, a pregnant woman only has to give two weeks notice of her intent to start pregnancy or parental leave (pg 4). It also says:

Birth mothers who want to take pregnancy leave must also give their employer a medical note that says when the baby is due, if their employer asks for one. (emphasis mine)

So, if you're pregnant and if your employer asks when the baby is due, you have to tell them. Otherwise you can tell them to butt out of your business.
posted by chuma at 8:34 AM on June 1, 2006

Yes, it is illegal. Check with Employment Standards for confirmation.

THe request to be told that women are even trying to get pregnant is pretty disgusting.

IANAL.
posted by acoutu at 8:37 AM on June 1, 2006

Geez, everyone is so harsh.

Yes, it could be illegal. It may even be immoral. But we don't know what was said or what the company does.

Maybe they do mercury cleanup. Maybe they do asbestos removal. Maybe it's a radiology lab where the female employees are taking x-rays all day long. Maybe they do a number of things that a woman who's trying to get pregnant wouldn't want to do and he wants to make sure that these people get reassigned to a safer role. Perhaps he's being considerate. Shocking!
posted by GuyZero at 8:46 AM on June 1, 2006

Maybe they do a number of things that a woman who's trying to get pregnant wouldn't want to do and he wants to make sure that these people get reassigned to a safer role.

Because as we all know, women are just too fucking stupid to ask for such reassignment on their own; they need a big strong man to take care of that for them.
posted by ROU_Xenophobe at 8:56 AM on June 1, 2006

Not likely, GuyZero. I don't find your possible reasons compelling, either. Rules for those industries would already be in place, including waivers, etc.
posted by agregoli at 8:57 AM on June 1, 2006

they need a big strong man to take care of that for them.

WTF?

Why is it so hard to believe that of all the possible options, one of them is that the guy is being considerate?

Some of the other options are that he's a bigot, that he's breaking the law, that's he's a misogynist or that he has a lactation fetish and is looking for future sexual harassment victims. There are plenty of scenarios where the guy is an ass, sure.

But it's totally ridiculous to accuse him on, let me count, 78 words of "evidence" of being sexist as opposed to simply being friendly and/or concerned.

If a man offers his seat on a bus to a pregnant woman, do you swear at him too?
posted by GuyZero at 9:02 AM on June 1, 2006

LOL ROU_Xenophobe!
posted by agregoli at 9:04 AM on June 1, 2006

To clear up the maternity leave issue, women in Canada can have a year of leave, paid by EI (and during which time their job is protected). There's 17 weeks of maternity leave and the rest is parental leave that can be taken by either parent (concurrently or consecutively).
posted by winston at 9:05 AM on June 1, 2006

Rules for those industries would already be in place, including waivers, etc.

I would be happy to be corrected, but there are no protections in Ontario labour law to cover women who are trying to become pregnant. But by all means, let me know that I am wrong about this.
posted by GuyZero at 9:08 AM on June 1, 2006

But it's totally ridiculous to accuse him on, let me count, 78 words of "evidence" of being sexist as opposed to simply being friendly and/or concerned.

::snicker:: Friendly and/or concerned? OK, Pollyanna.

Seriously, whatever the reason, nobody has any obligation to tell their boss that they're "trying" to get pregnant. That's a seriously personal issue, and seeing as how it could take someone 5 minutes or 5 years to get pregnant, it's really not going to help him plan out his business, anyway.
posted by ThePinkSuperhero at 9:13 AM on June 1, 2006 [1 favorite has favorites]

I would be happy to be corrected, but there are no protections in Ontario labour law to cover women who are trying to become pregnant. But by all means, let me know that I am wrong about this.


Still doesn't give an employer the right to know something so personal, in my opinion.

If you think different, so be it. I'm glad that you're in the minority here.
posted by agregoli at 9:15 AM on June 1, 2006

Exactly right, PinkSuperHero.
posted by agregoli at 9:16 AM on June 1, 2006

GuyZero, it's not my boss's job to monitor my reproductive health. And even if your best-light scenarios were true, the law quoted above specifically says that such instances are rare.

Since discrimination against women, often coded as concern that they might get pregnant, is not rare, it seems like the more likely explanation.

And in any event, it's illegal either way.

It also just sounds like "My female employees should tell me when they're having sex," which.... ew.
posted by occhiblu at 9:25 AM on June 1, 2006

Actually, he's a fool for entirely another reason.

If an employee tells him way in advance that he or she is planning on starting a family after he's stated that he should be told, he can't terminate them without a potential lawsuit on his hands.

(Of course, I'm not a lawyer, nor a Canadian.)
posted by Gucky at 9:35 AM on June 1, 2006

I don't know how compliance with such a policy could be determined. Even becoming pregnant is not evidence of "trying" to become pregnant.
posted by winston at 9:35 AM on June 1, 2006

The specific wording that the boss used makes a big difference. He might have just said (or meant) that he expects a certain amount of notice before maternity leave begins. In other words, he doesn't want to have to notice to his surprise one day that one of his female employees is starting to show, without ever having let him know that a maternity leave was obviously in the works. It's not your boss's business that you are planning, or not planning, to get pregnant, but as soon as you know for sure that you have a 17-week vacation coming up, it's counterproductive (so to speak) to not give notice of that fact right away.
posted by bingo at 10:34 AM on June 1, 2006

Unless providing that notification means you get taken off projects, or phased out of the high-level work you do, or passed over for a promotion or raise, or any of the myriad problems that can come from that if you don't have a good employer. Which is why, I'm assuming, the law requires only a two-week notice for leave.
posted by occhiblu at 10:36 AM on June 1, 2006

IANAL etc.

I could see this sort of thing coming up in casual conversation around the cooler and not actually being sinister, but the manager/boss who brings it up is being very foolish - because if he then fires them with cause (because they're incompetent, say), they have a good case that he actually fired them because they said "yes" when he asked if they planned to get pregnant soon, whether or not that's what actually happened.

Since a judge can't read his mind to know his intent, the appearance of propriety is nearly as important as the reality of propriety, here.

It is unequivocably illegal to ask such a question in a job interview.

If I were the employee being asked that question, I would document, document, document, and ask HR to do the same, in case my answer (or refusal to answer) appears to influence future promotions or my continued employment.
posted by joannemerriam at 10:47 AM on June 1, 2006

I know plenty of people that have waited until after they've started to show to actually confirm their pregnancies (one just confirmed last week, is five months along and obvious) and according to the Canadian info I cited earlier, you are not required to tell the boss of your leave until several weeks before the leave actually takes place. Meaning you could wait until month eight if you really wanted. Sure, the boss would figure it out and assume, but that's okay too.

And bingo - I was curious as to your gender, since a mother/woman would confirm that maternity leave is ANYTHING but a vacation, until I saw on your profile it says "obviously male" which actually gave me a good laugh since it was what I was thinking. Have to disagree with you on the semantics of that one, though I do agree that once you know when your leave will be and how long you will be gone, it would make good sense at that point and that point only, to share the information with supervisors.

Only at that point though, and not when you are trying to get pregnant, which I think we've pretty much covered here.

I think they key here is that the boss expects to be informed in advance of conception, regardless of whether he is trying to be friendly or protect his employees, that expectation is wrong and most likely illegal. Perhaps if it was a employee protection issue, it could have been phrased as, "As you may know, we do a lot of work with asbestos around here, and though you are not required by law to disclose information to me, it would be helpful if I knew if you were expecting or trying to become pregnant, so that I could reassign you to a safer area." If it were a planning issue, perhaps, "We start the big year-long project next month. We need to have you all dedicated throughout the duration of the project. If there is any reason that you will not be able to fulfill that duty, please stop by my office so that we can discuss." Those messages are pretty different from the one stated at the top of this page, and would seem to have a stronger legal standing than the one we are discussing.
posted by ml98tu at 11:09 AM on June 1, 2006

"We start the big year-long project next month. We need to have you all dedicated throughout the duration of the project. If there is any reason that you will not be able to fulfill that duty, please stop by my office so that we can discuss."

But that's kinda crappy, too. What happens if an employee gets sick? Gets a better job offer? Their partner gets transfered and they have to move? Or even someone gets pregnant unexpectedly? People have to drop out of jobs unexpectedly all the time. Women shouldn't have a higher standard for giving notice of life changes.
posted by occhiblu at 11:17 AM on June 1, 2006

But it's totally ridiculous to accuse him on, let me count, 78 words of "evidence" of being sexist as opposed to simply being friendly and/or concerned.

Honestly, I think you're seriously misreading the reactions here. I don't think anyone here is going to go burn down the anonymous firm's office, or string up the anonymous boss.

I think you should read it as "Assuming for purposes of argument that this is as presented, then..." or "In this hypothetical case..."

If a man offers his seat on a bus to a pregnant woman, do you swear at him too?

No, but I do follow him home, crush him as my enemy, see him driven before me, and hear the lamentations of the women.

What I meant was:

Even if he is acting out of the sort of motives you give, that's still really creepy, just creepy in a patronizing way.
posted by ROU_Xenophobe at 11:33 AM on June 1, 2006

occhiblu - I completely agree with you. Was just using that as an example that if it were indeed a planning issue, there is a better way of handling it than the statement that the supervisor made.

For argument's sake, the example I gave applies to both sexes that might know of something that could interfere with planning. Of course unxpected life changes are exempted from such a request. And to be honest, even if such a request were made and someone knew about an advance plan, it still doesn't mean they are obligated to tell the supervisor. People sign on to stuff all the time while knowing that they are planning on leaving, etc.

For the record, you raise very valid points; however, in this case I used that sample text to show that the idea that he did it for determining planning doesn't seem to have as much merit as one might hope.
posted by ml98tu at 11:51 AM on June 1, 2006

Even if he is acting out of the sort of motives you give, that's still really creepy, just creepy in a patronizing way.

The OP asked about legality, not creepiness.

I agree, it's quite creepy, inappropriate and ill-considered. It could and probably will be used as evidence in a legal proceeding. But it isn't strictly illegal. Discrimination is illegal. Asking shows intent to discriminate, but the issue, legally, is the discrimination, not the asking.

Which is exactly the reason I give such a "Pollyanna" answer: you would have to be a complete moron not to know that asking about pregnancy plans is a bad idea. The only context in which anyone with half a brain would make such a request is a friendly one. He could have less than half a brain I suppose, but I'll give him the benefit of the doubt.
posted by GuyZero at 12:09 PM on June 1, 2006

Women shouldn't be expected to tell anyone they're pregnant before 5 months, unless they want to. Saying women should tell as soon as they start to show is unfair (and conflicts with employment law). Pregnancies can spontaneously terminate at up to 5 months and amnio results aren't even available until about 5.5 months. Some women show at 3 months, whereas others don't show till 8 or 9.
posted by acoutu at 12:18 PM on June 1, 2006

GuyZero: Why is it so hard to believe that of all the possible options, one of them is that the guy is being considerate?

I agree, it's quite creepy, inappropriate and ill-considered. It could and probably will be used as evidence in a legal proceeding. But it isn't strictly illegal. Discrimination is illegal. Asking shows intent to discriminate, but the issue, legally, is the discrimination, not the asking.

Don't know how Canada works, but in the U.S. asking or demanding that information could be illegal depending on how that question is framed. In other words, just demanding information about a person's medical history can be considered discrimination in some cases.

Of course there are options such as the guy is being considerate, or perhaps the guy is ignorant of his obligations. Still, employees have the right to protest this treatment, and seek advice from the local government agencies that enforce these laws.
posted by KirkJobSluder at 1:01 PM on June 1, 2006

Definitely not legal. (I am a Canadian, and I'm pregnant.)

It would be my choice to tell my employer (which I did at 3 months) but I'm not obligated to. I am, however, not entitled to maternal leave except by E.I. since I'm in a company of less than 50 employees.

Thankfully, the boss understands and we're moving onto "work at home part-time" mode instead of my just quitting the job altogether. However, it is NOT his place to ask me if I'm pregnant. That would be against the constitution, and we take our constitution very seriously.
posted by Sallysings at 1:29 PM on June 1, 2006

It doesn't say anywhere that the employer demanded to be told, that's a massive strawman. The employer said he expects to be told.
posted by Jairus at 1:34 PM on June 1, 2006

So, I'm getting exacting to the point of hair-splitting here.

In other words, just demanding information about a person's medical history can be considered discrimination in some cases.

Per this comment, asking is indeed illegal in Ontario (labour law is a provincial responsibility) in the context of a job interview. I assume the basis for that is that it's virtually impossible to prove discrimination in those cases, so they prohibit asking in the first place.

But once you have the job, my non-lawyer reading of summaries of the law says that asking about pregnancy isn't illegal. It's illegal to require an answer, but it's not illegal to ask. Which may sound stupid, but that's the way it is. As Sallysings says, a woman is not obligated to say what her condition is. But employers aren't prohibited from asking either. Attempting to get pregnant isn't mentioned anywhere and has no legal meaning, to my knowledge.

Any cases of discrimination under the Ontario Labour Relations Act of 1985 go to the Ontario Labour Relations Board and not to the general court system. Here, for example, is a case where a poorly performing employee was not terminated until after she announced she was pregnant. Which isn't relavent in the details, just that it's an example of what these cases look like. Someone would probably have to be terminated as a result of stating they were trying to get pregnant before the board would hear the case. As a non-lawyer, I suppose you could file a complaint just on the basis of being asked, but my guess is that the board would find for the defendant or might not take the complaint at all. I think that the board takes cases where the discrimination didn't result in termination, but the 5 or 6 cases I browsed were all about job termination as a result of an employee announcing she was pregnant.

Anyway, the ORB has a search function where you can find bajillions of cases of actual discrimination, so if the OP reads this, feel free to look through to see if there are any similar cases.
posted by GuyZero at 1:43 PM on June 1, 2006

But the rest of that comment has further info from OHRC, which says an employer also can't "deny benefits or opportunities such as being promoted; getting training; being assigned to important or more challenging projects; or resuming your job after your pregnancy or parental leave."

So while you may be right that it would take a very egregious example to set precedent, lower-level harassment or discrimination (passing over someone for a project, etc.) would still be illegal.
posted by occhiblu at 1:58 PM on June 1, 2006

Is there a reasong (outside of eugenics) that society should support women while they take a government sponsored vacation just because they chose to give birth?
posted by Megafly at 2:52 PM on June 1, 2006

Ok, woah. That's a bit strongly worded. And a total derail. But let's take it at face value.

Is there a reasong (outside of eugenics) that society should support women while they take a government sponsored vacation just because they chose to give birth?

I can only talk about the Dominion of Canada and not this "society" of which you speak. I'm sure you realize that the US does things differently.

So, it's a max 17 weeks of Employment Insurance, which tops out at something like $400 per week. I collected 2 or 3 cheques myself when I went on parental leave for my first child. So the government provides this support to either parent (but not both at the same time), not just women. It isn't gender discrimination if that's your point. I don't know about you, but living on $400 a week is no vacation.

Second, the EI program in general - why does the government pay people when they don't have a job? This is a rhetorical question; if you don't see the value of EI in general, you won't see the value of government-funded parental leave.

Finally, why use any program to subsidize parental leave? I believe it has to do with the belief that a child's parents are the best caregivers for it, especially in the first year of life. The government actively promotes the benefits of breast-feeding, which is challenging if the mother is working a typical day job. And the government, in general, promotes people having babies. The Canada Child Benefit gives a good chunk of cash to middle/lower income families (it stops at a family income of around $75K). The provinces also have similar programs which provide hard cash to lower income families. Plus there's the tax deductions that families get. So it's not like maternal leave is some sort of unique program. The government wants women to have babies and they're not all that apologetic about it. Eugenics has nothing to do with it. Actually, it's the total opposite - the government encourages everyone to have more kids. If eugenics was involved, they'd only be encouraging blonde, blue-eyed people or something. If anything, there are more incentives for poor people to have children than rich people and if you're into eugenics, wealth is a mere side-effect of genetic fitness. So it's really anti-eugenic.

Frankly, as a parent of two, it's great. Beats spending my tax money on cuts to the dividend tax for wealth people or doing more hip replacements in seniors. Obviously my opinion will change when my kids grow up, I buy more BCE stock and I need a new hip. Plus parental leave isn't a vacation as one of the other commenters indicated. Hanging around the house all day with a newborn ain't exactly a picnic.
posted by GuyZero at 3:33 PM on June 1, 2006

Wow, there's a lot of mis-information about the EI available to new Canadian parents in this thread. According to the HRSDC website about EI benefitsfor new parents: "A combination of maternity, parental and sickness benefits can be received up to a combined maximum of 50 weeks." When you factor in the 2 week waiting period, this adds up to a maximum of a year. 15 weeks of these are only available to the birth mother, and the other 35 weeks are called parental benefits can be taken by either the mother or father (at the same time if you wish) or split up however you wish between the parents, as long as the total number of weeks does not exceed 35. These benefits are available to adoptive parents as well.
posted by raedyn at 9:18 PM on June 5, 2006

And I'm sorry that this doesn't address the OP's question at all, but I was really bothered by so much confusing & inaccurate info. I've pointed to an original source which will be more reliable than listening to any of us.
posted by raedyn at 9:20 PM on June 5, 2006