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TO DISCLOSE OR NOT DISCLOSE YOUR PREGNANCY

So, you are pregnant and looking for a new job. If you are not already showing, do you disclose this fact to your potential employer up front? Do you wait and tell them later? What are your rights?
 
Let us assume, for today’s sake, that the reason you lost your last job had nothing to do with your pregnancy and therefore cannot give an order from the Ministry of Labour reinstating you to that job.
 
Both the Ontario Human Rights Code and the Employment Standards Act prohibit discrimination against an employee based on pregnancy. An important factor to keep in mind here is that you only need to have worked for the employer for 13 weeks before you give birth in order to be entitled to a maternity/parental leave of 52 weeks. That 13 weeks of service before you go off insures that the employer has to give you your job back when the leave is over.
 
Starting a new job is like starting a marriage. You want to start out on the right foot because you are hoping that it will be a very long term relationship. The thought of not disclosing to a potential employer that you will be going off for a maternity leave in 5 or 6 months doesn’t sit right for many. Some people do not want to work for an employer that would have discriminated against them on the basis of a pregnancy in the first place and want to disclose it up front. Many do not to be permanently labelled as the employee who snuck in the door just before she was due to give birth just so she would have a job to go back to after the leave. 
 
There is, however, a very different way of looking at this. As a society, we have decided that discriminating in any way against an employee because they are pregnant is simply wrong. We have decided that it is in the best interest of gender equality throughout our society that women not suffer any disadvantage in their careers as a result of pregnancy.
 
If you believe that, by telling your prospective employer that you are pregnant, aren’t you somehow conceding that they have a right to know? Aren’t you suggesting that your pregnancy could legitimately be relevant to whether or not they should hire you? Some would suggest that this kind of suggestion is in itself a betrayal of the equality rights you will want the daughter you may be carrying to have.
 
Whichever choice you make, I do have one firm piece of advice. If you decide not to tell the employer at the point of hiring that you are pregnant, if you can possibly avoid it, do not disclose your pregnancy until after you have completed 3 months of service. 
 
The Employment Standards Act allows an employer to terminate an employee during the first 3 months without any financial penalty regardless of whether or not there is just cause. The courts have long recognized that there is at least a 3-month probationary period where the employer can let you go for even the smallest reason without having to pay severance.
 
If the 3 months probation is over, the employer discovers you are pregnant and suddenly comes up with reasons why they don’t want to keep you, the onus will be on the employer to prove to the Ministry of Labour that the termination had nothing to do with your pregnancy. Otherwise, you will be order reinstated and be compensated for lost wages.
 
If the employer discovers that you are pregnant and decides to terminate you within the 3-month probation period, your claim will be weaker. The employer will never admit that the termination had anything to do with your pregnancy and will argue that just because you are pregnant should not mean that they have to keep you on when any other employee could have been terminated without notice.
 
Sophisticated and enlightened employers do not discriminate on the basis of pregnancy and are used to accommodating maternity/parental leaves. They view the employment relationship as a long term one. One or two maternity/parental leaves in the course of a number of years of contributions to the company are seen as insignificant.
 
If you want to be sure from the outset that that is the kind of employer you are going to work for, disclose your pregnancy up front.
 
If economic necessity or ethics prohibit you from disclosing your pregnancy, follow advice in the column if you can.
 
And lastly, if you have no choice in the matter because you are already showing, go into that interview with a positive attitude. If you get offered the job, the chances are good you will end up working for many years for a company you actually like.
 
As published in the Hamilton Spectator, February 5, 2005
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com