Sex and Family Status Discrimination Substantiated by Employer’s Preference for Replacement Employee

Previously printed in the LexisNexis Labour Notes Newsletter.

In LaFleche v. NLFD Auto Ltd. dba Prince George Ford (No. 2), 2022 BCHRT 88, the BC Human Rights Tribunal (the “Tribunal”) awarded $78,625 to a complainant after finding that she suffered a work-related disadvantage because she was pregnant.

The complainant, Melissa LaFleche, began her employment with the respondent, NLFD Auto Ltd. dba Prince George Ford, in 2015. She occupied the position of “marketing manager” by December 2016.

In May 2018, Ms. LaFleche went on maternity leave. The respondent hired a replacement employee, Jessica Callahan, to cover for Ms. LaFleche during her leave.

On February 8, 2019, Ms. LaFleche met with the respondent’s new general manager, Chris Wall, regarding her return to work following her maternity leave. During the meeting, the parties agreed that Ms. LaFleche would return to work on July 2, 2019.  While the following facts were disputed by the respondent, it was alleged by the complainant that she understood from the meeting:

(1) Ms. Callahan would be staying on as marketing manager;

(2) the respondent did not have another position to offer Ms. LaFleche; and

(3) the respondent did not know what role Ms. LaFleche would occupy on her return to work.

The complainant filed a human rights complaint on February 13, 2019 alleging she had been demoted by the respondent and, from the above, the Tribunal was satisfied Ms. LaFleche left the meeting reasonably thinking that a demotion had occurred.

The Tribunal held “it was clear from the surrounding discussion” on February 8, 2019 that Ms. LaFleche would not be returning to the same duties she had in her role given that Ms. Callahan was staying on and performing marketing manager duties. In the Tribunal’s view, it was also very relevant that Mr. Wall told Ms. LaFleche someone from the company would get back to her at the end of March 2019 to discuss her return to work position and duties but no one did. This, according to the Tribunal, was a key omission by the respondent that crystallized the adverse effects of the discrimination on the complainant:

…  [The respondent] told Ms. LaFleche that someone would follow‐up [sic] with her in March about her future work options at Ford. After having clearly indicated that Ms. Callahan was retaining managerial duties and that Ms. LaFleche would not be returning to the same position she held before her maternity leave, this was Ford’s opportunity to address the specific changes to Ms. LaFleche’s position and duties to Ford. Had Ford contacted Ms. LaFleche in March 2019, and assured her that she would retain her managerial role at the same rate of pay, she may well still be working at Ford. Instead, no one from Ford ever contacted Ms. LaFleche after the February 8, 2019 meeting. This omission on Ford’s part, together with its communications at the February 8, 2019 meeting means that Ms. LaFleche reasonably understood that not only was she removed from her marketing manager position, but that Ford wasn’t that interested or committed to returning her to work since it had not identified her duties and position following maternity leave.

While the Tribunal noted the respondent was entitled to make “legitimate business decisions” during an absence, it was not permitted to make changes to the marketing department that disadvantaged Ms. LaFleche’s position because it preferred her maternity leave replacement. As the Tribunal put it, “but for” the maternity leave of Ms. LaFleche, she would have continued as the marketing manager – a role that Ms. Callahan would have continued to occupy even if Ms. LaFleche returned to work.

In the result, the Tribunal found that the respondent’s conduct amounted to a “constructive dismissal” and constituted discrimination in employment on the basis of sex and family status.

Turning to the remedy, the Tribunal awarded Ms. LaFleche $12,000 for injury to her dignity, feelings and self-respect as well as $66,625 for lost wages she would have received had she returned to work in July 2019 as planned and for lost benefits.

Takeaways for Employers

This case highlights the particular caution that employers must take when reorganizing a business in a manner which might affect an employee’s position while he or she is on leave.

The mere fact a replacement employee is preferred does not override the absentee employee’s human rights. Unless doing otherwise is critical or essential to the business, the safest practice to the extent possible is to ensure the employee’s position remains undisturbed and available for his or her return to work.

In addition, the Tribunal’s decision illustrates the importance of communicating clearly with employees and ideally in writing regarding the conditions around their return from leave. Even though the complainant had filed her human rights complaint in February 2019, had the respondent contacted her in March 2019 and assured her that she would retain her role as before, there might well have been an entirely different outcome in the case. The Tribunal’s comments on this omission by the respondent should serve as a cautionary tale for other employers.

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein.  The article is for general information purposes only and does not constitute legal advice.