Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2014 Cases and Trends Pregnant server constructively dismissed and discriminated against New owner felt server didn't fit with sports bar's new image and tried to get her to quit: Human Rights Tribunal By JEffrEy r. SmiTh A BriTish ColumBiA restaurant must pay almost $10,000 for discrimination against one of its servers because she was pregnant, the B.C. Human Rights Tribunal has ruled. Stephanie Lipp was employed as a server at Maverick's Sports Lounge, a restaurant and bar in Vancouver. Lipp was hired in Oc- tober 2012, was considered a good worker and was popular with customers. In March 2013 Maverick's was sold to a new owner. Lipp stopped being an employee of the old owner and started employment with the new owner immediately after the sale was complete. e new owner of Maverick's wanted the business to be run more efficiently and decided to "reinvent how we were doing things," as well as change the image of Mav- erick's into a sports bar. Because business was slower in the day, staff hours during the day were cut, resulting in fewer hours avail- able overall. e new owner met with the general manager to discuss the staffing changes. e then-general manager testified when they reached Lipp's name on the list, the owner placed his hands in front of his stomach in a gesture to indicate she was pregnant, then directed the general manager to reduce her hours. It was believed Lipp was six months pregnant at the time. Pregnant employee's hours cut more than everyone else's Most employees saw their shifts cut back by a shift or so, but Lipp's hours went from four shifts per week to one. In early April 2013, Lipp heard that the general manager was telling others the new owner wanted to fire her because she was pregnant. At a staff meeting, Lipp checked the sched- ule for the following week but she had no shifts assigned. She asked the general man- ager why she didn't have her usual four shifts, and he assigned her three shifts. She worked three shifts the following week as well. On April 28, Lipp received a text message from the Maverick's floor manager telling her she was only scheduled for one day shift that week. By this time the general manager had called her and told her the owner want- ed to reduce her hours so she would quit, so Lipp met with the owner that evening. When Lipp asked why she was only getting one shift that week, the owner replied that he could give anyone any shifts he wanted. He denied trying to get her to quit because she was pregnant and walked away. After the meeting, Lipp spoke to a bar- tender who confirmed the owner wanted her gone because of her pregnancy. e kitchen manager also said he had heard ar- guments between the owner and the floor manager because the owner wanted to get rid of her due to her pregnancy. Employee replaced for her shift On May 1, Lipp arrived at Maverick's 15 minutes before the start of her scheduled shift. e floor manager told her that anoth- er server was coming in to work and, since only one server was needed in the day, she would be replacing Lipp. e reason given was that they weren't sure Lipp was going show up for her shift. e next day, the floor manager texted Lipp to inform her she was scheduled for two day shifts the following week, but then texted her later to say Maverick's was no longer open weekdays because business was too slow. One of the weekday shifts was rescheduled to a weeknight. On May 6, the owner gave Lipp a letter to sign that stated she would show up for her shifts. Lipp refused to sign as she had never missed or been late for any shift before. Lipp finally had enough and she had a lawyer send a letter to the owner saying the workplace environment had been made un- bearable for her and she considered herself to be constructively dismissed. Lipp sued for compensation for lost wages from her previous four-shifts-per-week schedule —$2,468.51 — plus $12,500 for injury to dignity and damages from discrimination due to her pregnancy. e owner denied trying to get Lipp to quit and said all staff had their hours cut. He also claimed Lipp wasn't visibly pregnant when he took over Maverick's and he didn't know she was pregnant for a while. e tribunal found it was unlikely the owner didn't know Lipp was pregnant, as she was six months along at the time and everyone agreed she was showing. It also found the new owner was intent on improv- ing the profitability of Maverick's and likely felt Lipp's pregnancy didn't fit the image he wanted for Maverick's. e arguments and comments overheard by staff made it clear the owner wasn't com- fortable with Lipp on staff while pregnant and wanted her gone — this was borne out by her reduction in hours, said the tribunal. ough all staff saw their hours cut, Lipp's hours were cut more than everyone else's. e tribunal also found it was "improb- able" that the day another server was called in to replace Lipp they weren't sure if Lipp was coming in. ere was no reason to be- lieve that was the case, and it was another example of the "drastic and arbitrary reduc- tion in the number of her scheduled shifts," said the tribunal. is event confirmed for Lipp that she wasn't wanted because of her pregnancy. "I find the reduction (of shifts) was in ac- cordance with a plan or design to induce Ms. Lipp to quit because a pregnant server did not reflect the image that (the new own- er) had in mind for his pub," said the tribu- nal. "I find that Ms. Lipp found herself in 'an inhospitable, discriminatory work environ- ment … (such that she had) no reasonable option but to depart.'" Maverick's was unable to prove not being pregnant was a bond fide job requirement for its servers, so the tribunal found it was guilty of discrimination based on sex. e tribunal reduced the amount it considered appropriate for lost wages, since she would have experienced a reduction in shifts even without discrimination, as all staff did. Maverick's was ordered to pay Lipp $2,000 for lost wages. Based on past decisions, the tribunal found $7,500 was an appropriate award for injury to dignity and self-respect, putting Maverick's on the hook for $9,500 plus post-judgment interest. For more information see: • Lipp v. Maverick's Sports Lounge, 2014 Car- swellBC 2678 (B.C. Human Rights Trib.). After the meeting, Lipp spoke to a bartender who confirmed the owner wanted her gone because of her pregnancy.

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