Timing of pregnancy disclosure can be tricky

In late 2018, Diane, a manager with her company, hired Maria to be a change management consultant. The contract was for a maximum of two years since Maria was hired to work on a specific project.

A year after Maria started, Diane met with her boss to discuss performance concerns she had with Maria. Deadlines were being missed. A month later, in late January 2020, Diane met with another member of management and discussed her intention to terminate Maria as a result of performance concerns.

Around that time, Maria asked her boss if she could work from home for a little while because her husband was ill. Diane did not say no. She did suggest Maria use saved time off to cover that period. Maria declined and kept going to the office.

On Feb. 13, Maria was terminated and paid out pursuant to the terms of her contract. Months later, a notice of an application to the Ontario Human Rights Tribunal arrived. Maria was claiming that on Jan. 21, 2020, she told Diane she was pregnant. Maria had learned a few days before that she was pregnant and due to prior health issues her pregnancy was considered high risk.

Maria claimed that after she disclosed her pregnancy and up until her termination a few weeks later, Diane was distant with her and there were far fewer interactions. Maria saw Diane meeting with people who reported to Maria without her. She felt ignored.

Maria’s application alleged that she had been induced to leave secure employment to take the job on promises of an eventual full-time permanent position. She also alleged that her termination was related to her disclosure of her pregnancy and that the company failed to accommodate her when she asked to work from home because her husband was sick. She said that this refusal was a violation of her right to be free from discrimination on the basis of her marital status.

It was true that during the interview process Maria articulated more than once her ambition to become a full-time permanent employee. Her interviewers, including Diane, promised to support her in that quest where they could.

But at the end of the day, Maria signed a contract for a temporary position that would last a maximum of two years. That was the agreement that mattered.

Diane denied categorically that Maria had ever disclosed to her before the termination that she was pregnant. A number of other management employees gave evidence that the first time they heard about the pregnancy was when the application arrived months after the termination.

It became clear during the hearing that Maria had not disclosed her pregnancy to any friends or colleagues in the workplace.

In fact, when Maria had asked to work from home to take care of her sick husband, it was because of her concerns about her pregnancy. Her husband was not sick at all.

The adjudicator was clearly persuaded that Diane was smart enough to have raised the pregnancy during the second management discussion of the potential termination if she had known anything about it.

The fact that Maria lied about the reason for wanting to work from home also corroborated that she had not disclosed the pregnancy to anyone and was hiding it from the employer. In the early stages of pregnancy most people do not disclose and that would especially be the case for many when a high-risk pregnancy is involved.

The adjudicator dismissed the complaint of failing to accommodate Maria’s marital status because the whole thing was a lie.

Ultimately, the adjudicator believed that Maria had never disclosed her pregnancy so the termination could not, even in part, have been related.

Parents have the absolute right not to disclose an expected child for as long as they like or for as long as it is possible. But out of an abundance of caution, and perhaps some cynicism, I recommend disclosing before there is any possibility of people in the workplace finding out some other way. If there is someone in your workplace who would rather not accommodate a pregnancy/parental leave, nondisclosure can work against you if they make up some other reason for the termination.

This article was originally published by The Hamilton Spectator.