Interesting news item. A former Google Canada employee is suing Google Canada for wrongful dismissal in the Ontario courts, alleging that she was fired because she told her supervisor she was pregnant and applied for maternity leave, contrary to the Ontario Human Rights Code.
Google says “Not so” - she was fired as part of a regular employee restructuring, along with other employees. Purely coincidental that it happened so soon after she told her supervisor she was pregnant.
Hmm - well maybe, if they can show that the employee restructuring was in the works and she was on the list beforehand, that may be a defence.
But what is catching the headlines is that Google Canada is advancing an alternative defence, in case the first one doesn’t work:
I guess Google’s lawyers have forgotten about a unanimous judgment of the Supreme Court of Canada, rendered by the Chief Justice of Canada almost forty years ago:
Having found that the Safeway plan discriminates by reason of pregnancy, it is necessary to consider whether pregnancy-based discrimination is discrimination on the basis of sex. I venture to think that the response to that question by a non-legal person would be immediate and affirmative. In retrospect, one can only ask – how could pregnancy discrimination be anything other than sex discrimination? The disfavoured treatment accorded Mrs. Brooks, Mrs. Allen and Mrs. Dixon flowed entirely from their state of pregnancy, a condition unique to woman. They were pregnant because of their sex. Discrimination on the basis of pregnancy is a form of sex discrimination because of the basic biological fact that only women have the capacity to become pregnant.
I wouldn’t want to be the lawyer stading up in court against a unanimous SCC judgment and arguing that Dickson CJC, one of Canada’s leading human rights judges, got it wrong and should be corrected.
Is this still true, as far as Canadian courts are concerned? Transmen can become pregnant, and if the courts have agreed that transmen are men for all legal purposes, then the argument above becomes invalid: both men and women can become pregnant, and therefore there is no sex discrimination.
If on the other hand the courts recognize the difference between gender and sex, and that one or the other may come into play at different times, and that man vs. woman may refer to either gender or sex, then that’s a different story. But have they?
Even if the court is so idiotic as to think that gender identity is the only thing that can be discriminated against, discrimination against pregnancy is still discrimination against women, because a vastly larger proportion of women can get pregnant than men.
That would require the courts to have some understanding of statistics, which they’re often not very good at.
The US has an “80% rule” for disparate impact, which posits that discrimination is happening if some event is happening less than 80% of the time with one group vs another (say, if men are hired 50% of the time, and women <40% of the time). I suppose something like that could kick in if Canada had equivalent laws/rules/precedents/etc.
That would require that the courts have at least enough understanding of statistics to be able to remember to keep breathing. I’ll readily grant that courts often misunderstand subtle nuances of statistics. “It’s mostly women who get pregnant” is not a subtle nuance.
As you note, that decision is from forty years ago, but we live in an age where we’re encouraged to change the language because women aren’t the only ones who get pregnant these days. It’s not pregnant women, it’s pregnant people. Transmen are men, ergo men can get pregnant.
Of course I’m not seriously advocating this as an argument, but I could see someone making an attempt. I’m not a fan of firing someone on the basis of them expecting a child no matter the sex of the employee.
“How could pregnancy discrimination be anything other than sex discrimination?” What a curious perspective.
If I fire someone because I discover that they have prostate cancer, we might agree that that is discrimination, but surely it’s not sex discrimination purely because men are the only ones with prostates?
In the same vein, I suppose Google could argue that they fire people for any and all medical conditions. Some of those may be male-only (like prostate cancer) and others female-only (like pregnancy), but that they are not discriminatory in a broad sense.
Pattern recognition is a thing. Persecution of women for getting pregnant has been so prevalent for so many centuries that the rational thing is to assume that looks like just another case, is such a case.
In either the US or Canadian system, could the mere fact that they raised this argument in court weaken their case on the other argument? After all, if they think it’s not really discrimination to fire a woman for being pregnant, that makes it much more plausible that they actually did fire a woman for being pregnant.
Arguments in the alternative are quite common in civil litigation in Canada, and not necessarily prejudicial. I assume also in the States.
That was one of the major reforms in civil pleadings in the common law world in the 19th century, because traditional common law pleadings always insisted on narrowing the case to one issue alone, by means of the demurrer.