Alison McKinnon started a new job at the Inn on the Hill on September 20, 2010, and was fired less than a month later during her probationary period because her work was unsatisfactory.
BUT WAS IT DISCRIMINATION?
On October 18, 2010, McKinnon let her employer know that was pregnant. Forty minutes after acknowledging the pregnancy, McKinnon was given two weeks’ notice. McKinnon refused the two additional weeks’ work and complained to the Human Rights Commission of PEI claiming that she had been discriminated against due to her pregnancy.
At first, these circumstances may seem to indicate discrimination, but there are two significant intervening facts. First, a week before October 18, McKinnon’s employer had discussed firing her with senior staff and decided that her employment was to be terminated. McKinnon’s pregnancy was not a relevant factor because the employer did not know about it. In fact, her employer planned to fire her on October 17, a day earlier, but found no convenient time to do so. Second, employment law recognizes that employers have the right to fire employees without cause or consequence during their probationary periods. This is because employers are particularly vulnerable when they hire new employees. New employees are less productive and tend to cost more.
The Human Rights Panel awarded McKinnon $15,206.00 of her former employer’s money even though it accepted that there was no intention to discriminate. Ignoring the law on probationary periods, the Panel held that new employees are in a vulnerable position and that McKinnon’s dismissal had a discriminatory effect on her.
The distinction between intention and effect is the key to understanding this decision. You can be found guilty of discrimination even if you didn’t do anything that was discriminatory. It seems as though everyone in the human rights industry thoughtlessly accepts this oddity along with the claim that human rights law is remedial and not intended to punish.
No one can honestly believe that a $15,206.00 fine levied against an individual is not punishment. According to the Merriam-Webster online dictionary, punishment is to impose a penalty for a fault, offense, or violation. When someone complains about you to a human rights commission, that commission assesses whether your actions amount to discrimination. If they do, the commission will order you to pay money to the one you discriminated against. This scenario perfectly satisfies the dictionary definition of punishment, and no amount of obfuscation can change that brute fact.
It is equally a farce that the human rights industry maintains that human rights law is remedial. Remedy implies that someone failed to satisfy their duty to you. And where there is no duty, there can be no remedy. If your neighbour’s tree falls on your property and damages your fence, the law permits you to recover sufficient damages from your neighbour to return your fence to its previous undamaged state. Remedy is granted because your neighbour failed in his duty to prevent his tree from causing you loss.
WHY NOT STOP HIRING YOUNG WOMEN?
If human rights law were truly remedial and non-punitive, McKinnon’s complaint should have been dismissed.
Decisions like this make employers less willing to hire young female employees. If a new male employee proves unsatisfactory, he can be fired without a second thought. But if a new female employee proves unsatisfactory, employers better hope that she is not pregnant. Even though discriminatory hiring practices are illegal, decisions like this encourage employers to simply look passed the job applications of qualified females—or any applicant that might make a human rights complaint. If no one will ever know, employers will always choose to hire the employee that comes with less risk.
And that’s the core of the problem. Not only does the human rights industry ignore the common sense meaning of words, it subtly harms those that it professes to help. By giving McKinnon $15,206.00 of her former employer’s money, the PEI Human Rights Panel is encouraging employers to find subversive ways to avoid hiring young women.
This piece was originally published by Troy Media in February 2012.