Maternity Leave, EI and Adverse Discrimination

The way in which the Employment Insurance Act treats parents who lose their jobs during or after the period in which they received maternity or parental benefits is unfair and discriminatory. A woman is entitled 15 weeks of maternity leave benefits and up to 35 weeks of parental leave benefits unless her spouse uses some of those parental benefits.
Although more men are starting to use parental leave benefits, more often than not it is still the women who uses the combined 50 weeks.
During that 50-week period, unlike regular Employment Insurance recipients, they don’t have to look for work.
Presumably, we as a society have decided to support mothers and parents financially after having or adopting a child because we recognize society’s interest in having happy, well-bonded children and parents who are at least cushioned to some degree from the financial consequences of having a child.
In this economic climate, however, where some companies seem to be terminating whole sections of their work force, more and more women are being advised during their leave or at the end of it that there is no job to go back to. As a result of how the Employment Insurance Act is written, mothers who have used up their 50 weeks of maternity and parental benefits are out of luck if they can’t find a new job right away.
Let’s take examples of Jack and Jill. They both started working for the same company on the same day as customer service representatives eight years ago. Last May, Jill started a maternity leave. After contributing Employment Insurance premiums over many years with a number of employers, she received her first EI cheque ever.
Three weeks before Jill was scheduled to return to work from her maternity leave, she hears that the entire customer service department of 50 employees has been shut down and outsourced. The writing is on the wall. Although nobody tells her formally, she knows what’s going to happen on the first day of her return to work. Sure enough, she is advised that she, along with all the other customer service representatives who were terminated the week before, is out of work. Both Jack and Jill receive a six-month severance package paid out in a lump sum. Neither of them are eligible for Employment Insurance until that six months of wages has been notionally used up plus another two weeks waiting period. At the end of six and a half months, Jack has still not found new work and he applies for EI. He can receive up to 40 weeks.
Jill can apply for EI but she won’t get it. The rules say that in order to get regular benefits, she has to have accrued a certain number of insurable hours during the 52-week period before she starts her claim. ‘Insurable hours’ means that you are on payroll and EI premiums are being contributed by both you and your employer.
Jill has used up all her benefits. The lump sum severance payment doesn’t count as insurable hours and she hasn’t worked actively for 18.5 months. It is as simple as this: Jill had a baby and collected EI benefits, Jack did not. Jack wins. Jill loses.
As a result of Jill being a mother and a parent, so as a result of her gender and family status, Jill does not get the entitlement that Jack does.
Given that the Canada Human Rights Act has stated for many years that people cannot be discriminated against based on their gender or family status, you would think that this injustice would long ago have been fixed. Until somebody takes this matter to the Canadian Human Rights Tribunal, however, I fear nothing is going to change. These have been the rules for many years over many successive federal governments and so far as I can tell, none of them seem to have taken notice or cared.
Jill has been the victim of what is called ‘adverse effect discrimination’. No doubt, the rule about having a certain number of insurable hours within the last year before the claim is made was not designed to discriminate against Jill or other women. But the effect of the rule is clearly discriminatory. Both women and parents in general are suffering a financial disadvantage.
If you find yourself  in this situation,  when you get the letter from Service Canada indicating you cannot collect regular benefits for the reasons set out above,  you should write a letter within 30 days saying, “I appeal”.
Within a month or so, you will be asked to appear before a panel of three people who do not work for Service Canada. You should hand them a copy of this article and tell them that you are being discriminated against pursuant to the Canada Human Rights Act. At the same time, you should contact the Canadian Human Rights Tribunal and file a complaint against Service Canada. Both of these processes cost nothing. I am cannot guarantee that the appeal and human rights complaint will be successful but there is nothing to lose. There is no point in waiting and hoping for your local Member of Parliament to push through any changes to the Act. Take matters into your own hand.

Ed Canning is a partner practicing in the Labour & Employment Group at Ross & McBride LLP.

As published in the Hamilton Spectator, April 27, 2009.
Ed Canning
Ed Canning
P: 905.572.5809