Winter 1997 Newsletter INFACT Canada

Michelle Poirier versus the BC Ministry of Municipal Affairs

Michelle Poirier family
Michelle Poirier and family: Doug Sprenger, Aaneli, and Kathryn (on lap).
What is the complaint about?

In December, 1990, Michelle Poirier returned from maternity leave to her job as a speech writer with the Ministry of Municipal Affairs, Recreation and Housing. At the time, her infant was less than four months old. She made arrangements for her child to be brought to her each day at noon hour to be breastfed. Michelle kept her child with her at her workstation until the baby was picked up.

In March, 1991, the Ministry sponsored a series of public "brown-bag" lunch presentations during the week leading up to International Women's Day. Michelle attended two of these sessions, one a showing of films about women's working conditions in the '40s and '50s and another, a lecture about a new phenomenon, the "men's movement." This second presentation was attended by both men and women.

After this lecture, the Ministry received a number of complaints about the fact that Michelle had breastfed in a "mixed" audience. In response, the Ministry established a policy that children were not allowed in the ministry building and Michelle was no longer allowed to breastfeed her child at her workplace during her lunch hour. In April, another public lecture was scheduled and Michelle was told she could neither bring her child to the public, noon-hour lecture nor could she receive compensatory time off work to attend to her lactation needs.

In February, 1992 Michelle filed a complaint with the British Columbia Council for Human Rights (BCCHR). The complaint was that she had been denied a service available to the public (contrary to Section 3 of the BC Human Rights Act) and that she had been discriminated against in the terms and conditions of her employment (contrary to Section 8).

Why has this case taken so long?

Because more than six months had passed between the events and the filing of the complaint, there was a delay while the BCCHR determined whether they would allow the complaint. The report on the investigation report was not completed until November, 1993. On the basis of the report, the BCCHR set a hearing into the aspect of the complaint relating to the denial of a public service. They denied Michelle a hearing into the workplace discrimination aspect of her complaint on the grounds she had been reasonably accommodated.

Michelle appealed this decision to the BC Supreme Court. The case went to court in April, 1995 but was adjourned on a technicality and it took until March, 1996 for the case to come before a judge again. In August, 1996 Justice Drost brought down a decision that the BCCHR had been "patently unreasonable" in arriving at their decision not to hold a hearing into the complaint of workplace discrimination and sent the matter back to the BCCHR for reconsideration. The BCCHR then scheduled a hearing for March, 1997 to look at both aspects of the complaint.

What is happening now?

On March 6, lawyers for both sides presented the Tribunal Chair with a joint statement of fact. This means that both Michelle Poirier and the Ministry of Municipal Affairs do not dispute the evidence contained in the document. The Tribunal Chair gave lawyers until March 17 to prepare their arguments. Michelle's lawyer, Robert Farvolden, has asked the Tribunal Chair to rule on whether discrimination against a woman because she is breastfeeding constitutes discrimination on the basis of sex. His argument will address this point as well as whether the events as described in the joint statement of fact constitute discrimination.

After March 6, the BC Human Rights Commission (as it is now called) applied for intervenor status in the case. They have done so in order to emphasize how important it is that the Tribunal Chair rule on the issues of whether breastfeeding women are protected from discrimination. This application has caused a minor delay in the proceedings and final documents were not before the Tribunal until March 21.

While the Tribunal Chair has reserved the right to call for further evidence, either written or oral, once documentation is complete the final stage is to wait for the Chair's written decision, a process that will likely take four to 10 months.

"I want to remove any doubt that to discriminate against a woman who is breastfeeding is to discriminate on the basis of sex," says Poirier. "My hope is that a legal precedent will oblige employers to make reasonable accommodation of the needs of nursing mothers."

"When I first met with resistance to breastfeeding at work, I took it personally. Later I realized that what was happening wasn't about me, it was about our society. And that's why I want to change things around."

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