Yes, You Can Lose Your Job During Maternity Leave

IIn the summer of 2024A former Google Canada employee filed a lawsuit against the technology company for wrongful termination and violation of the Ontario Human Rights Code. Sarah Lilleyman, who was thirty-nine years old at the time and had worked at Google Canada for approximately two and a half years, alleged that she was fired because she was pregnant; she was let go just days after informing her supervisors about her pregnancy.

Lilleyman allegedly learned from Google Canada that her termination was attributed to “restructuring,” “workforce reduction,” and “shifting business requirements.”

In its defense statement, as reported by theNational Post, Google Canada stated that the company “denies it discriminated against Lilleyman in her employment or during termination based on sex, gender, or any other protected category under the Ontario Human Rights Code.” Additionally, the company asserted, “Lilleyman’s claims, even if accurate (which are firmly denied), do not constitute a breach of the Code . . . First, ‘pregnancy’ is not considered a protected ground under the Code.”

In reality, pregnancy is covered by the province’s human rights laws: it is against the law to refuse to hire, terminate, lower in rank, or lay off (even with prior notice) someone due to their current or potential pregnancy. However, is Google’s statement, although not accurate legally, entirely incorrect?

“It’s a frightening experience to expose yourself to confront such a large corporation that holds so much influence,” said Kathryn Marshall, Lilleyman’s attorney.National PostHowever, she is aware that there are numerous other women facing pregnancy discrimination in the workplace who lack the opportunity to speak up; they may not have the necessary support or resources. She understands that by speaking out, she is not only assisting herself but also helping many other women.

Last June, while Lilleyman’s legal case progressed through the courts, a group named Moms at Work released survey findings that gathered responses from 1,300 Canadian women employed full-time who had taken time off for maternity leave. The participants were reached by collaborating with women’s groups and using online methods, with the data analysis managed by Rachel Margolis, a sociologist and demographer from Western University in London, Ontario.

The most attention-catching figure? The data showed that 15 percent of Canadian mothers were fired, laid off, or had their contracts not renewed during their pregnancy, while on maternity leave, or shortly after returning to work following their leave. This percentage is three times higher than the rate of job loss among the general population in a single year. Additionally, over 27 percent of survey participants were refused flexible arrangements after their leave, 16 percent were denied flexible work during their pregnancy, 11 percent were discouraged from attending prenatal appointments, and 7 percent were denied sick leave upon returning to work.

“I just got tired of people saying it wasn’t an issue,” says Allison Venditti, the chief executive officer and founder of Moms at Work, regarding her motivation for conducting the survey. Prior to establishing Moms at Work, Venditti spent many years in the field of disability management. At the age of thirty-three, she sustained a traumatic brain injury, was out of work for three years, lost the ability to read, developed a seizure disorder, and the left side of her body still doesn’t function properly. She chose to reach out to former clients and offer her services as a consultant, as her knowledge of disability management gave her expertise in the relevant legislation (employment standards, health and safety, disability rights, parental leave) across Canada, the United States, and Europe. Being a mother herself, her clientele primarily consisted of women and mothers.

She didn’t have to wait long before understanding that the women she was guiding required her less than they needed a network of other women facing comparable struggles. In 2018, she created a Facebook group, marking the beginning of the first version of Moms at Work; when the pandemic began, the community rapidly expanded to 15,000 members. Now, it has grown beyond 21,000.

Venditti grew more fascinated by the topic of maternity leave terminations during the pandemic. She observed a significant increase in stories about maternity leave dismissals and layoffs within the Moms at Work community, and started inquiring—reaching out to Statistics Canada and the Canadian Human Rights Commission—to find if anyone had data that could back up her anecdotal observations. No one had such information. As a result, she chose to carry out the research on her own.

I witnessed it because I was part of it,” Venditti states. “But no one had the data. How else was I going to convince people?

Iin 2024, the Vanier Institutereleased a report that offered a statistical overview of families in Canada throughout the past three decades. The rise in mothers’ involvement in the workforce during this period reflects a significant change from the conventional family structure that was prevalent in Canada during the Second World War era.

More women are contributing half of the family’s income, providing the majority of it, and are now the sole providers for their households. From 2000 to 2022, the percentage of couples where women earned all of the household income rose from 7.8 percent to 10.7 percent. However, despite the overall increase in the number of women who are the main financial supporters in their homes, women in relationships without children are twice as likely to be the primary breadwinners compared to those with children.

If you have children, it’s much less likely you’ll be the only person supporting your family financially. “The motherhood penalty is real,” Venditti explains. “People have strong ideas about what women should be doing with their time—and that’s taking care of babies. People tell us things like, ‘I got fired today, and my boss said it would be great because I could spend time with my baby.'”

This is how sociologists Michelle J. Budig and Paula England described, in 2001, the “motherhood penalty”—a term used to explain the financial challenges women typically encounter in their jobs after becoming mothers or when it’s assumed they will become mothers. The most significant issue is that women’s earnings and job stability tend to decrease after having children—more so than for men. This gap can begin as soon as a woman comes back from maternity leave and may continue throughout her professional life.studiesStudies have repeatedly demonstrated that mothers earn less compared to women who do not have children. In comparison, many new fathers see an increase in their income.

Other drawbacks for mothers involve insufficient maternity leave provisions, unfavorable flexible work schedules, and a lack of available childcare facilities. Women frequently experience a slower advancement in their careers and are less likely to receive promotions than their peers. Perceptions can be equally damaging: numerous employers consider mothers to be less capable or dedicated to their roles, which can affect their hiring chances, promotion opportunities, and performance assessments.

In reality, locating sources for this article was not difficult, but finding individuals willing to speak openly proved challenging. Many of these women shared their experiences with me while remaining anonymous, due to concerns about potential consequences.

A woman was informed that she no longer had a job to return to during the middle of her maternity leave. At the time she received the news, she was deeply involved in being a new parent: nursing constantly and fully occupied with her new duties. The thought of eventually going back to work, reclaiming some independence, and resuming a role outside of caring for her adorable newborn had been what kept her motivated. Then she found out that this wouldn’t be possible.

“I believe every new parent, but perhaps mothers more so, feel a bit lost in the journey of parenthood,” she reflects. “Our bodies transform, our priorities shift, we lose sleep, we lose our sense of self. Of course, we gain a great deal as well, but it’s definitely a time of adaptation.” At times, the unfairness is more subtle: one woman was promised a higher position when she returned from leave, along with a direct report to help her manage her time and focus on bigger projects. “That was exactly what I wanted to hear,” she recalls thinking.

Instead, her supervisor reached out a few months after she gave birth, proposing that she consider applying for another management position, provided she ended her maternity leave sooner. When she indicated she wasn’t ready to do so, her boss revealed that she could no longer ensure the senior position she had been promised or even a position within the same department.

There was a woman who lost her job when her baby was ten months old, just as she was preparing to return to work. She cherished her job and her coworkers and was deeply upset by the news. “Why did I lose my job? There were so many unanswered questions that kept me awake at night while I got up to feed my baby and weep. It’s truly the worst time to look for a new job [or pursue legal options]. People don’t understand how widespread and harmful this situation can be for women and their families.”

According to the Moms at Work survey, instances such as these are alarmingly widespread. The most commonly heard response when these stories are shared is: Isn’t this illegal?

TThis is a common routefor an employee who becomes pregnant: at some point during the second trimester, after the initial uncertainty has passed, the employee will inform their supervisor about the pregnancy; a leave of absence will be discussed, and specific dates will be set for when the leave will start and when the employee plans to return to work.

After giving birth, the mother will apply for maternity benefits supported by the federal government. This program, which began at a lower level in the early 1970s and became more familiar as the current program in the 1990s, provides 55 percent of an individual’s salary for twelve months (capped at $729 per week), or 33 percent of their salary for eighteen months (capped at $437 per week). Some companies provide additional payments—known as “top up”—to increase the amount employees receive beyond what the government offers.

Discrimination based on pregnancy is not allowed under the Canadian Human Rights Act and all provincial human rights laws. In this context, “pregnancy” also covers related health issues and situations, including time off for maternity after giving birth. According to the Canadian Human Rights Commission: “Discrimination tied to pregnancy is a type of gender-based discrimination, as only women can experience pregnancy. Actions like unfair treatment, refusal to hire or promote, ending employment, or harassment due to pregnancy are illegal under the Act.” Therefore, according to our country’s laws, women who are on leave should be safeguarded.

However, this is often not the case.

An employee may be let go without cause under both common law and legal statutes. Two human rights laws may be relevant: the Canadian Human Rights Act and the particular provincial human rights legislation, such as the Ontario Human Rights Code in Ontario. Which one applies in employment situations depends on whether the employee is under federal or provincial regulation. This distinction is based on the industry, but only approximately 6 percent of workers in Canada are federally regulated (such as those in telecommunications, transportation, or banking), with the majority being provincially regulated.

Regarding employees on maternity leave, there is a common misunderstanding that an employee on protected leave cannot be fired, and that is not entirely accurate,” says Aaron Zaltzman, associate lawyer at Whitten & Lublin, a Canadian employment law firm located in Toronto. According to Zaltzman, in Canada, it is not automatically illegal to terminate an employee who is pregnant or on parental or maternity leave, provided the termination is not connected to the pregnancy or the leave itself. “You can already see where the law is lacking,” Zaltzman states. “Because no employer with common sense would openly acknowledge a link between an employee’s leave and their dismissal.

Demonstrating that discrimination has taken place can be challenging—but in Canada, this is not the required standard of proof. Courts recognize that an employer is unlikely to openly acknowledge discrimination and therefore use a three-step approach to assess whether discrimination has occurred: First, is the individual protected under specific grounds? (For example, someone who is pregnant or has recently been pregnant falls into this category.) Second, has there been a negative occurrence? (An employment termination is considered such an event.) Third, and most crucially, is there a connection between these two factors?

To identify a nexus, courts follow a second process consisting of two steps. The first step involves having a low standard of evidence to conclude that some form of discrimination occurred. This standard can be as simple as showing that an individual was fired while on parental leave, shortly after returning from it, or soon after expressing the intention to take parental leave.

It can be that straightforward,” says Zaltzman. “Once the court determines what is known as a prima facie case of discrimination, the next step is that the responsibility to prove the termination was justified falls on the employer—and the employer must convince the court that there is a legitimate reason for the dismissal.

Some employers are just not well-informed,” says Deborah Hudson, managing partner at Hudson Sinclair LLP, a law firm based in the GTA that focuses on labor and employment law and collaborated with Moms at Work for its survey. “They might not fully grasp their legal responsibilities regarding parental leave or return-to-work rights, particularly if they don’t have internal HR or legal resources.

Hudson notes that many employers tend to focus on immediate operational demands or supposed efficiencies rather than long-term fairness and legal adherence. They may wish to keep a high-performing employee who covered for someone on maternity leave and want to avoid the “disruption” of bringing the original employee back, or they might make rapid restructuring choices without fully understanding the legal and human consequences. “Some employers are intentionally careless,” Hudson explains. “They know the risks but believe that most employees won’t take legal action because it’s time-consuming, expensive, or complicated.”

However, employers and their human resources departments have also become more knowledgeable, leading employment law firms to observe increased attempts to cover up and frame maternity leave-related terminations as harmless business choices. Employers frequently assert that these dismissals result from “restructuring” within a company or organization, but upon further examination, it might become evident that the restructuring disproportionately impacts employees who are on leave. Even if the restructuring is genuine, the employer must still demonstrate that the decision was not in any way affected by the employee’s leave. (“Why were they reassessing the needs of the business to the point where they concluded they no longer needed that person’s position?” Zaltzman states. “It’s only because the individual was on leave.”)

Employers frequently assert (especially when an employee is on parental leave) that the employee’s position is no longer available. This strategy is often used to justify termination, yet according to employment standards laws, if a similar position is available, the employer must offer it to the employee returning from leave. In some situations, employers do not adequately reintegrate the employee upon their return or favor the temporary replacement, resulting in indirect discrimination. Alternatively, they might officially return the employee to their previous role, but in reality, assign them fewer responsibilities, exclude them from important projects, or allow the temporary worker to remain in a more significant position.

Each of these methods, if disputed, would necessitate a legal review to determine if the employer’s choice was truly independent of the employee’s absence and whether the employer fulfilled their responsibilities under labor and human rights legislation.

Current legal cases are changing—firing someone while on parental leave without consequences is becoming increasingly difficult, and women on leave who face these challenging situations are often encouraged to think about this when deciding whether it’s worth the effort to take action. “Courts aren’t perfect,” Zaltzman notes, “but they’re not that naive.”

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What Google Canadais attempting to present its defense by asserting that pregnancy is not considered a protected category, which underscores the importance of women being aware of their rights—the likelihood of these rights being violated remains significant. As the case progresses through the courts, the framework of protections for new and expecting mothers is sure to change.

Venditti hopes that releasing the results of the Moms at Work survey will assist her in the next stage of her efforts: reforming how employment insurance (EI) functions in Canada. At present, EI and parental leave benefits are drawn from the same fund—so if you lose your job near the end of your parental leave, there is a strong chance that no funds will remain for you to access.

“Let’s stop trying to force EI to function for families, and instead of linking it to employment, let’s connect it to the child,” says Venditti. “Link the funds to the child, similar to the Canadian Childcare Benefit, and make it an independent benefit. Then it won’t matter if you have a full-time job or how many hours you work, or if you’re a stay-at-home parent.” In essence, she is proposing that we separate the financial support provided to those who have lost their jobs from the support given to new parents.

With regard to the law, Zaltzman and Hudson hold slightly different views on upcoming changes.

Zaltzman believes that two developments can occur within legal practices: first, recognizing that parental leave is, and should be, a major consideration in determining common law notice periods. The second involves reducing the evidence required from the employee and increasing the responsibility for the employer to provide evidence. He also proposes raising the minimum entitlements (such as in Ontario, where individuals may receive up to eight weeks of termination pay and up to twenty-six weeks of severance if fired without cause) for those who are let go within a specific timeframe before, during, or after a protected leave.

Hudson argues that the main force behind change comes from a mix of education and financial penalties. “Higher legal damages and stricter enforcement create real reasons for employers to change their actions,” she states. “When discrimination is expensive, employers are more inclined to make substantial improvements.” She believes that when companies encounter major financial risks—beyond just damage to their reputation—they are more likely to invest in effective prevention strategies, such as improved training, stronger policies, and more equitable workplace practices. “This blend of financial pressure and responsibility would lead to a stronger motivation for employers to actively reduce discrimination, ultimately leading to a significant decrease in cases,” Hudson explains.

In the end, Zaltzman and Hudson share a common perspective. As the majority of these cases never reach trial, lawyers focus on ensuring individuals receive compensation—promptly. “At the end of the day, we can’t restore your job,” Zaltzman explains. “And honestly, you might not even want that, right? Who would want to return to an employer who just discriminated against them?”

For Venditti, the broader system is fundamentally broken. “EI was created during a period when everyone worked full-time, and one person remained at home. That is no longer the case today,” she explains. “If we truly believe in supporting families and maternal mental health and children, the best way to improve all of these is by providing people with financial support.”

After Moms at Work released its survey on their website and shared some of the results on social media, the reaction was huge. “Hi! It’s me! I’m one of them!” “Thank you for this. I’ve recently become part of the 15 percent. I was the main provider and am now trying to find work while taking care of a newborn.” “This happened to me!” “I can confirm this!” Each of these individuals was among the 15 percent of Canadian mothers who had been let go just before, during, or right after taking parental leave. The statistics speak for themselves. Can the same be said about employers?

The post Certainly, You May Lose Your Job While on Maternity Leave first appeared on The Walrus.