# 2014-164 - Discrimination, Pregnancy

Case Summary

F&R Date: 2014–12–30

The grievor was appointed to an Acting While So Employed (AWSE) position for a period of one year. Eight months later, an appointment message, approved the continuation of the grievor's AWSE appointment for an additional year. The following month, the grievor disclosed her pregnancy. Subsequently, the Director Military Careers posted the grievor out of her AWSE position with a coinciding rank reversion instruction stating that her period of parental leave did not satisfy the intent of the AWSE policy as she would not be available to fulfill the requirements of the position. The grievor contended that her posting out of the AWSE position was directly related to her having disclosed her pregnancy and that the decision was discriminatory and violated the Canadian Human Rights Act (CHRA).

The Initial Authority (IA) denied the grievance finding that it was reasonable to post the grievor from the AWSE position given that she was unavailable for employment. The IA also denied that the grievor's posting was due to her being pregnant.

The Committee had to determine whether the decision to post the grievor out of the AWSE position, and the coincident rank reversion, were done in accordance with applicable policies and regulations. Further, the Committee had to determine if the decisions at issue were discriminatory, pursuant to the CHRA.

The Committee considered the existing jurisprudence, the CHRA and the Canadian Human Rights Commission's guide for employers regarding pregnancy and human rights in the workplace. The evidence on file clearly showed that the decision to cancel the grievor's appointment to an AWSE position was directly related to the grievor going on maternity and pregnancy-related leave. The Committee considered this to be pregnancy-related discrimination and contrary to the CHRA, as it was adverse differential treatment based on the prohibited grounds of sex and family status.

The Committee recommended that the decision to remove the grievor from the AWSE position be annulled, and her pay, pension and other associated benefits be adjusted accordingly. The Committee also recommended that the Canadian Armed Forces conduct a review of the relevant policies to ensure that they conformed to the CHRA and are not discriminatory.

CDS Decision Summary

CDS Decision Date: 2015–05–25

The CDS agreed with the Committee's findings and recommendations. The CDS found that the grievor should have remained in the position at the rank of AWSE LCol and the decision to post her out and to revert her to the rank of Maj was discriminatory and unnecessary. The CDS was prepared to promote the grievor retroactively. Contrary to the Committee, the CDS did not see a systemic issue with the policies: in his view, the problem comes from the way the policies are being applied. The CDS had previously asked CMP to review, in priority, the AWSE, acting rank, posting and promotion practices of military personnel on maternity leave to ensure that they are up to date.