The British Columbia Human Rights Tribunal recently awarded a pregnant employee damages equal to the Employment Insurance benefits she lost when termination of employment prevented her from reaching the number of insurable hours required to receive EI pregnancy benefits.

The complainant claimed that her former employer had discriminated against her on the basis of sex (pregnancy) contrary to Section 13 of the Human Rights Code  when it terminated her employment after she advised them that she was pregnant. She further claimed that if not for her termination, she would have qualified for EI pregnancy benefits. The employer denied that they discriminated, and argued that the complainant was terminated as a result of poor performance, disruptive workplace conduct and ongoing requests for schedule changes.

The Tribunal rejected the respondent’s arguments and concluded that the employer had discriminated against the complainant because her pregnancy was a factor in her termination. Notably, the Tribunal concluded that the employer had not proven that it had brought its concerns with her performance to her attention prior to learning that she was pregnant. With respect to damages, the Tribunal stated that the complainant’s request for damages representing her lost EI pregnancy benefits “fit squarely within the purpose of seeking to put the person who was discriminated against in the position they would have been in, but for the discrimination.”

The decision is a reminder that employers can be liable for benefits lost as a result of wrongful terminations. Moreover, in the case of a pregnant employee, if the reason for termination is poor performance, employers must be able to demonstrate to the Tribunal’s satisfaction that the employee’s performance was an issue prior to learning of the employee’s pregnancy and that the employee was made aware of the employer’s concerns. Where this can be established, the Tribunal will accept the employee’s pregnancy was not a factor in the termination.

LaCouvee v. Alchemy Studios, 2013 BCHRT 126