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is this maternity discrimination?

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  • Jul 2nd, 2018 9:56 pm
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[OP]
Member
Feb 7, 2004
489 posts
166 upvotes
St Thomas

is this maternity discrimination?

Looking for opinions on the following scenario.

This is a unionized environment. The situation involves a pregnant permanent part-time employee applying to an internal posting for a permanent full-time vacancy of the same job. The posting closes, this employee is the most senior that applied and should be offered the full time position. In between the time the posting closes and before she is formally offered the position, she goes into labour, has the child prematurely and is currently in hospital. Now the employer is saying she is "not fit to work" because she is on pregnancy/maternity leave and so will offer her the position with a start date of whenever she returns from said leave. What this means is that the employee will still be considered part time while on leave which means no health and welfare benefits that come with a full time position and could affect her seniority. But for the fact that she had the baby when she did, she would have been offered and accepted the full time position and had full benefits throughout her maternity leave and been enrolled in the pension plan.

To me this doesn't seem right but given the uniqueness of the situation I am having a hard time finding any relevant information or case law online. This will obviously be going through the unions grievance procedure but I'm curious if anyone has thoughts or had a similar experience. Thanks.
32 replies
Deal Guru
User avatar
Mar 23, 2008
11500 posts
7784 upvotes
Edmonton
It doesn't really seem discriminatory to me, as she hadn't been formally offered (much less accepted) the position. If you ask me, she should be grateful she's being given a chance to come back to the permanent job after being on leave.

But she could talk to an employment lawyer for an actual answer.

C
[OP]
Member
Feb 7, 2004
489 posts
166 upvotes
St Thomas
CNeufeld wrote: It doesn't really seem discriminatory to me, as she hadn't been formally offered (much less accepted) the position. If you ask me, she should be grateful she's being given a chance to come back to the permanent job after being on leave.

But she could talk to an employment lawyer for an actual answer.

C
Grateful to keep her job? You can’t penalize an employee in anyway, including denying them a job promotion simply based on them being pregnant. That’s maternity leave 101.
Deal Guru
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Mar 23, 2008
11500 posts
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Edmonton
Labrie wrote: Grateful to keep her job? You can’t penalize an employee in anyway, including denying them a job promotion simply based on them being pregnant. That’s maternity leave 101.
She hadn't been offered the job yet, according to your OP. If she had received and accepted an offer, it would be a different story.

C
[OP]
Member
Feb 7, 2004
489 posts
166 upvotes
St Thomas
If she was offered and accepted the position I wouldn't have had to post this thread in the first place. They were about to offer it to her and then she informed them she was in the hospital. The whole point is that she is being denied full time status simply because she's on leave.
Deal Fanatic
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Jan 31, 2006
6666 posts
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Toronto
Labrie wrote: If she was offered and accepted the position I wouldn't have had to post this thread in the first place. They were about to offer it to her and then she informed them she was in the hospital. The whole point is that she is being denied full time status simply because she's on leave.
The employer is about to offer her but she was in the hospital, therefore she is NOT YET READY. Maybe down the line she will get it. The employer did nothing wrong at all.
Deal Guru
User avatar
Mar 23, 2008
11500 posts
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Edmonton
Contract law 101 is "time is of the essence". Something to consider...

If she belongs to a strong union, she might be in luck. Or maybe they'll really value her, and will do the right thing. But legally, I don't believe they have an obligation. Again... An employment lawyer would be a good investment if the union grievance doesn't work out.

C
Deal Fanatic
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Jul 29, 2005
8532 posts
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Mississauga
Did they verbally offer her the position or you she assumed she would be offered the position? I'm guessing the employer needs someone right away.
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Deal Fanatic
Nov 21, 2011
9468 posts
1912 upvotes
Edmonton
So she wasn't a offered a position she wasn't able to perform and that's discrimination?
Deal Expert
Aug 22, 2011
34468 posts
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Center of Universe
Employer did nothing wrong.
Member
Feb 20, 2017
317 posts
97 upvotes
Barrie, ON
This seems to be pretty straight forward, if she had accepted the job offer before going into labour she would be entitled, but she wasn't offered the job and she's already registered as "on leave", not sure why there's anger vs the employer.
Newbie
Dec 13, 2010
20 posts
21 upvotes
Vancouver
If I'm reading the original post correctly, the employee will be offered the regular, full time position, as soon as she is ready to return to work. So it seems to me, the employer is doing the right thing, in ensuring that she is offered the position she applied for, when she is ready to return.

I know the timing makes this situation somewhat unique, but imagine the employee was already on maternity leave, and applied for the role while she was off. If she was the successful candidate (which she is), she wouldn't officially start the role until she returned, so would still fall under the benefits package of her part time role. She never actually started the new position. As has been mentioned, it's possible that a grievance would result in her being appointed to the role now.
Deal Addict
Apr 21, 2014
2191 posts
973 upvotes
Alberta
Labrie wrote: Grateful to keep her job? You can’t penalize an employee in anyway, including denying them a job promotion simply based on them being pregnant. That’s maternity leave 101.
Grateful that they are holding the NEW position for her even though they haven’t formally offered it to her
Deal Guru
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Dec 7, 2009
13833 posts
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From the employer's perspective, she wasn't ready to take on the job. No need for hand-wringing over WHY this was the case. It is what it is.

I'm completely fine with employers passing over women of child-bearing years for jobs that require a lot of responsibility. It's a risk and you can look at it in actuarial terms.
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Deal Expert
Oct 6, 2005
16570 posts
2292 upvotes
CNeufeld wrote: But she could talk to an employment lawyer for an actual answer.
It's a union environment, I think OP has to go to the Union rep. Employment lawyers may not be able to provide much help in a unionized environment,

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