How Maternity Leave Is Failing Canadian Women
Increasing the birthrate. Letting mothers take care of their young children without damaging their careers. Extended maternity leave was enacted for all the right reasons. So what went wrong?
Veronica Wong was a sales manager for a Vancouver yoga-wear company. She oversaw a team and sold bulk orders to her own clients. After three years at the company, she was happy with her position, her pay and her boss. She also wanted to have a baby.
“Don’t worry,” the company’s owner told her when he found out that she was pregnant. The two worked out a plan: Her boss would hire an interim sales manager, who would transfer to another team when Wong’s mat leave ended. For her part, Wong, now 33, promised that when she returned she would resume most of her travel duties. She worked up until the day before her January 2009 delivery. She felt secure, knowing her job would be there for her when she got back. “You can transition slowly,” her boss said about her eventual return.
A year later, Wong’s comeback did not go as planned. Her sales accounts weren’t given back. Her managerial responsibilities were gone: her replacement continued to supervise the other sales reps. Worst of all, she was moved from a salary to an hourly wage. This adjustment, combined with the loss of her sales accounts, shrank her pay by over 60 percent.
“I understand that it was a small company and things shift,” Wong says. “If my duties changed, that’s okay, but things need to be on an even keel to what it was like before.” She sent an email to her boss, explaining her issues and asking to work together towards a solution.
“I feel like you’ve lost your motivation,” he replied. “You chose to have a family and not a career.” Wong then had a series of arguments with him, demanding to at least have her benefits reinstated. In June 2010, five months after her return to work, she was fired.
Canada is a world leader in paid parental leave. It’s the kind of triumph that should give us bragging rights when we speak to, say, American friends, whose jaws drop when we boast we get a full year off. We’ll concede Canada isn’t as terrific as Sweden, which hands out 16 months (of which two are solely for secondary parents, usually dads). But our government does pay parents 55 percent of their salaries while they’re on leave (up to a limit of $485 a week), and 35 weeks can be split between two parents however they choose. Our bosses have to hold our jobs for us or slot us into something “comparable,” and they have to give us any raises we missed. Hearing this, our U.S. counterparts grit their teeth, calculating the vacation time they can slap onto the 12 (unpaid) weeks guaranteed by their federal government.
But maybe it’s time to stop bragging. To be sure, a year-long leave does allow birth mothers to recover from the physical demands of labour (Canada’s first mat-leave statute, in British Columbia in 1921, only prevented women from being forced to work in the six weeks before and after birth). But if the goal of a generous maternity-leave policy is to encourage more babies, it hasn’t worked. Since year-long leave was instituted in 2001, Canada’s fertility rate has barely budged, from 1.52 babies born per woman in 1999 to 1.59 in 2011.
The other goal of a longer leave is to reduce the impact of parenthood on Canadians’ careers. “The stress of balancing work and family demands is particularly acute for parents of young children,” says Lisa King, a Human Resources and Skills Development Canada (HRSDC) spokesperson. “The availability of extended benefits ensures women are not penalized for their child-bearing role and are therefore more likely to stay in the workforce and return to the same job.” But many Canadian mothers complain they can’t find affordable child care when it’s time to head back to work, and that employers snub, demote or even fire them for having taken time off in the first place.
According to King, a long leave also protects employers from the cost of finding permanent replacement workers, while encouraging fathers to be more active child rearers. Those are lofty ideals, but again, they don’t reflect how year-long mat leave is playing out in reality. Employers grouse that losing a skilled worker for a year costs them a lot in terms of money and efficiency: They have to train temporary workers, who may jump ship if something permanent comes along.
Furthermore, fathers still take far less parental leave than moms and take on significantly less child care. Meanwhile, employees forced to shoulder extra work during their co-workers’ mat leaves want fair compensation, and they resent being shunted back down the seniority line when a parent wants back in.
Experts have long argued a child’s first 12 months can impact his or her health for life. Breastfeeding has health benefits for both babies and moms, and a newborn has a vital psychological need for parental attention. “The attachment that forms in the first year is really critical, and it’s based on parents’ abilities to respond when the baby is upset,” says Chaya Kulkarni, director of Infant Mental Health Promotion at Toronto’s SickKids hospital.
Child health was on the mind of then-governor general Adrienne Clarkson when she announced the mat-leave extension in her 1999 throne speech. “No commitment we make today will be more important for the long-term prosperity and well-being of our society than the commitment to invest our efforts in very young children,” said Clarkson. “All of society must work together to ensure that our children develop the abilities to succeed.”
This groundbreaking recognition by the federal government introduced a wildly popular statute-in 2008, 80 percent of new mothers in Canada took some EI-funded time off. Unfortunately, no solid plan was laid out for what should happen next. The result is a system that isn’t working for anyone.
One symbol of how dismissive Canada is of working mothers is the dearth of statistics about their workforce role. Absolutely no organization tracks complaints and court cases involving parental leave discrimination on a national level. Moms and dads in federally regulated industries, such as banks and airlines, can lodge their complaints with the federal Canadian Human Rights Commission as well as the HRSDC-Labour Program.
Most jobs, however, are overseen provincially, generally giving complainants the choice of reporting their grievance to the Ministry of Labour, the Human Rights Tribunal or the court system. It’s not known whether all of these organizations even track complaints related to pregnancy. In any case, none of the organizations contacted in B.C. and Ontario earmarked cases in which parental leave was the main issue. And when the issue is noted, it isn’t always clear whether the complainant is male or female.
Because of the lack of good data, it’s difficult to say how widespread post-mat-leave discrimination is. In 2011, there were ten cases in which a provincial body ruled on cases of maternal-and parental-leave discrimination: three in British Columbia, six in Ontario and one in Nova Scotia. That number seems low, but the goal of such tribunals is to keep as many cases as possible out of arbitration, pushing both parties towards cheaper, faster mediation instead. For example, that same year the New Brunswick Human Rights Commission had eight total complaints, three of which were solved in mediation (one was dropped, and four others are still being investigated).
One likely reason for the low numbers is that mothers are often too intimidated to press their cases. Caroline James was demoted after her first maternity leave and fired after her second. In 2004, she had begun working as an office manager for a vet in West Vancouver. Like Wong, James thought she had a good relationship with her boss, but then she was shifted into a receptionist’s role after her first maternity leave ended in 2009. Her replacement was permanently installed in her old managerial position. James stayed in the office through her second pregnancy. When complications occurred around her eighth month, she went on sick leave and then on maternity leave.
In September 2011, she returned to work. Six weeks later, she was laid off. Her boss claimed he could no longer afford a large staff. When he hired someone to replace her soon after, James got legal advice. After being contacted by James’s lawyers, her former boss offered two extra weeks of severance. She accepted. “I wish I had stuck with the lawsuit,” says James, now 30, “but I couldn’t handle it at the time.”
While the incident rate of mat-leave disputes may not be available, what is known is that motherhood-related career setbacks can have serious financial consequences. According to Statistics Canada, childless women can earn up to 30 percent more than their parent counterparts. Meanwhile, 31 percent of Canadian wives now earn more than their husbands. At risk is a family’s bottom line. But for some mothers it’s about more than just money.
“At the end of the day, there’s a difference between a job and a career,” says Kendra Schumacher, a 36-year-old Toronto mother of a two-year-old son, who now works as a digital strategist. Previously, Schumacher was an art director for seven years. She personally trained her replacement before going on mat leave. While she was away, the company was sold. Her infill worker left and was replaced by a stranger. “The person in my role stayed on,” says Schumacher about her return to work. But Schumacher wasn’t given all her duties back. “I went from art director to managing an Excel spreadsheet,” she says. Her new supervisor was friendly but not interested in her ideas.
Schumacher’s salary didn’t change, but that wasn’t the point. “I was clearly not allowed to fulfill what I had worked so hard to do,” she says. When a junior designer went on maternity leave, Schumacher was assigned to that job, which she considered a demotion. She confronted her supervisor about his long-term plans for her. “He said, ‘There are none.’” Schumacher decided to look for another job rather than force the issue.
Mothers who feel pushed out of their jobs due to lost responsibility or a hostile environment might have grounds for a charge of “constructive dismissal”-being fired in effect, if not in actuality. But few career women want things to escalate to that point. After spending years achieving the education and experience to win jobs that match their ambitions, most are loath to let a year of parental leave push them off track.
Of course, there’s more to these cases than just a dishonest or unhelpful employer. Neal B. Sommer is a Toronto lawyer who specializes in wrongful dismissals and human-rights complaints. He handles about four cases of alleged parental-leave discrimination a year and has seen a number of recurring flashpoints between employers and new parents. One of the most common occurs when practices have moved forward during the year. There might be new software to learn or certain duties may now be outsourced, and the new mother finds herself playing catch-up. “The mother wants to come back to the job as it was, while the employer needs her to do the job that exists today,” says Sommer.
Workplaces are competitive, and the energy of junior employees and temps might highlight weaknesses in the departing parent. “People don’t like to hear it, but the person replacing you may be better than you are,” says Sommer. Sometimes employers are faced with a difficult choice when a returning employee is less productive than a replacement.
Technically, bosses can only fire parents for “exceptional” reasons-that is, reasons unrelated to their leave or intention to take one. Toronto workplace lawyer Daniel Lublin, whose firm handles an estimated 100 parental-leave cases every year, says employers may use the “exceptional” clause as a firing loophole. It’s intended only for rare situations, such as a plant shutting down: The job is gone, and there’s nothing comparable to offer the mother.
When Lublin represents the parents in pregnancy- and parental-leave-discrimination cases, he generally fights to increase the damages they are awarded. The stingy payouts are another sign of how undervalued working parents are in Canada. In those cases where Ontario and B.C. Human Rights Tribunals ruled in favour of the mother, no award was over $20,000. Considering that many mothers on parental leave use up their EI allowance, that amount is barely enough for a few months of job-hunting.
Even those mothers who manage to hang on to their jobs face what Reva Seth calls “unintentional discrimination.” Seth is founder of The MomShift, an online campaign celebrating women who achieved career success after having children. She found that about 80 percent of the 300 women she interviewed for an upcoming book were frustrated by the belief that new moms want to take it easy. They complained that as soon as they announced their pregnancies, their managers assumed they’d prefer to downshift.
Post mat leave, moms are no longer invited to after-work power drinks, or are overlooked for demanding projects. “Usually people think they’re helping,” says Seth. In interviews with senior managers, Seth has advised them to avoid such assumptions. Often, she says, the reverse is true: Motherhood helps women sharply focus their career goals.
Schumacher says that leaving her young child in daycare was a wrenching decision that she made in part because of the satisfaction she gets from her work. In turn, parenthood has made her more decisive and improved her multi-tasking. She’s often among the first at her desk in the morning-“You’re up so damn early it becomes part of your routine”-and she’s willing to plug back in for a few hours when her son is asleep. “From a career point of view,” Schumacher says, “a child isn’t a hindrance.”
For many working moms, Canada’s year-long parental-leave policy feels like a trap. It lures parents into believing that the country supports them and their babies, but it ultimately leaves ambitious moms scrambling for the careers they want.
Are there any solutions to easing the strain of parental leave on both employees and employers? It depends on whom you talk to. Lublin thinks the government should more narrowly define the “exceptional circumstances” clause to remove it as a as a legal crutch. Meanwhile, the Canadian Federation of Independent Businesses has suggested that small-business employers be exempt from paying EI premiums for temporary workers covering parental leave, in recognition that it’s proportionally easier for larger companies to temporarily shift people around to keep things running smoothly. Temp employees themselves would still pay into EI, while the companies could apply their share to the costs of training the temps. Since 2011, the self-employed have been able to pay into EI and then receive parental leave, a move that recognizes that 15 percent of Canadians now work for themselves-still, it’s unlikely that $485 a week would enable an entrepreneur to take a full year off without a means to supplement their income.
Sommer believes many of the problems with maternity-leave policy have to do with its length; women returning to work face negative outcomes more frequently than men because they take longer leaves. “If men took leave of the same length as often, the same thing would happen to them.” (In 2009, only 30 percent of dads took EI-funded leaves.) Still, Sommer thinks the situation can be remedied. Both employer and employee, he says, need to make sure that parental leave isn’t an excuse for someone to “fall off the face of the Earth.” Bosses should offer to train new moms on software and office protocol throughout the year, and women should make every effort to attend. As well, he thinks that new mothers should “keep in touch with your clients if you want them to be yours when you get back.”
Seth agrees. She encourages mothers to demonstrate that they’re still excited about their careers, perhaps by setting aside one night a week to stay late in the office, using it as a time for chit-chat if there isn’t a project to work on. She also believes that Gen-Yers will force employers-and the government-to fix the problem. Law and accounting firms have told her the question of parental leave now comes up frequently in the recruiting process.
Skilled young women are making it clear they expect to have both a family and a career. As well, the tradition of waiting to make partner before giving birth is fading: junior associates aren’t willing to delay. Both moms- and dads-to-be let their bosses know they expect to have flexible hours and opportunities to work remotely. Top talent now assumes that work-life balance is attainable.
It took Veronica Wong a while to find that balance. As part of Wong’s severance package, the yoga-wear boss promised to send her commission on future seasons of clothing that she had already sold, about $1,500. She never got it. “I was naïve,” says Wong. “I should have talked to a lawyer.” After the firing, retaining legal help seemed expensive, and dramatic.
Both Wong’s professional and personal lives were in flux when her first maternity leave ended two and a half years ago. “We wanted to have a second child a lot earlier but couldn’t because of our money situation,” says Wong, “and it threw my career path off.” She’s been steadily job-hopping since her firing, moving from a children’s clothing company to selling office furniture. In 2011, she accepted a job as an account manager at a B.C. newspaper.
Given all of the risks of taking maternity leave, it’s amazing so many working Canadian women are having babies at all-more than 360,000 births every year. The reason seems clear: They do it for love. They’ve learned not to expect help, and don’t seem to get much of it either.
If you think you’re being discriminated against for taking a parental leave, here’s what Toronto workplace lawyer Daniel Lublin suggests:
- Don’t say or sign anything. If terminated, keep quiet about any potential lawsuit in order not to prejudice your legal position. Refuse to sign any documents until you’ve received legal advice.
- Get that advice. Provincial Ministries of Labour and Human Rights Tribunals generally have free helplines. Visit an employment lawyer who knows Canada’s special protections for pregnant women and mothers.
- Pick your jurisdiction wisely. Three provincial bodies hear parental-leave-discrimination cases-the Ministry of Labour, the Human Rights Tribunal and the civil courts. Each has pros and cons, and once a case is before one of them, it’s generally no longer eligible for the others.
- Don’t wait. Human Rights Tribunals have a specific period in which discrimination cases are viable.
- Don’t let them get away with it. This is a very employee-friendly area of law, and the protections for new parents are especially vigorous.