When Ottawa police Const. Andrea Cut-hill was told she wouldn't be returning to her job as court liaison officer and coroner's constable after becoming pregnant with her first child, she decided it wasn't right and fought back.

The result was a precedent-setting ruling that found the Ottawa police transfer policy violated Ontario's Human Rights Code, discriminating against pregnant officers by denying them the right to return to their previous job postings.

"I felt I was being punished for taking maternity leave. I knew if I hadn't taken maternity leave, I would still be there," says Const. Cuthill, who was awarded $3,000 by arbitrator Howard Snow earlier this year after filing a grievance against her employer. "That was the only reason I was being transferred."

According to the transfer policy, officers who leave their positions for longer than six months are subject to being permanently transferred.

Despite a clause in the policy that allowed the police department to extend the amount of time an officer can be on leave when there are "extenuating circumstances," the department elected to transfer Const. Cuthill anyway.

Const. Cuthill, 39, was on a one-year maternity leave until February of this year. The 16-year veteran filed the grievance after learning in November 2005 she would not be returning to the position she had held for three years, which involved reviewing evidence and making sure witnesses and evidence were available for court.

While the Ottawa police transfer policy appeared "neutral on its face" since all employees were subject to it equally, the policy actually discriminated against pregnant officers since they are the ones most likely to take a leave longer than six months, argues lawyer Steven Welchner, who represented Const. Cuthill and the Ottawa police association.

In Const. Cuthill's case, that meant a transfer from a day job with no weekend or holiday work to rotating night and weekend shifts on patrol in the city's east division.

"It was discriminatory because it was women being forced to give up their position that they otherwise would have kept, only because of the fact they were women and had become pregnant," he says.

However, Const. Cuthill and the police association say the policy wasn't being applied fairly across the board. Many male officers, who took leaves of longer than six months for medical reasons or because they were seconded to other sections, departments or on peacekeeping missions abroad, retained their positions, they claimed.

During the arbitration process, the police department unsuccessfully argued that officers are only entitled to return at the same rank, pay and benefits.

"The argument that was put forward was that a sworn officer does not own a position, they own a rank," says Ottawa police director of human resources Christine Roy. "This is simply a matter of us saying we have a right to transfer where there is an operational need."

Ms. Roy said the department never intended the policy to be discriminatory against female officers and is honouring the arbitrator's ruling.

"Our employees are our most valuable asset," said Ms. Roy. "This decision certainly brought to light a practice that was inappropriate."

Mr. Welchner says the dispute was never over the police department's right to transfer employees, which the association doesn't oppose, only transfers that were made for no other reason than the member becoming pregnant.
Mr. Welchner says fixing the policy could be as simple as being "sensitive" to pregnancy issues.

"I don't know if they actually have to change the policy, they just have to understand that pregnancy is an extenuating circumstance," he says.

However, the arbitrator's decision is expected to have wider implications.

Police officers, who are bound by collective agreements and the Police Services Act and not subject to the Ontario Employment Standards Act - which protects a woman's right to return to the same or comparable position following a maternity leave - now have a legally binding decision protecting their job positions, he said.

Ontario Police Association president Bob Baltin calls the decision "significant," adding it "is going to assist employees in all manner across the province where they may have a similar policy," he says. "It's not restricted to Ottawa officers."

Ottawa police association president Charles Momy says he believes the decision has highlighted the need for more training, particularly when it comes to the Ontario Human Rights Code and labour law, for senior officers responsible for transfers at the superintendent and inspector rank.

"It seems like if there is a policy in place, some inspectors and superintendents just follow the policy. They don't care if it is right or wrong, they just follow it. You would think that in this case here, someone would have raised the red flag and said this doesn't sound right to me.' And no one raised those red flags."

Const. Cuthill says she was "dumbfounded" when at one point she was told by a senior officer that there was an "element of choice" to when an officer took maternity or parental leave, but not when they went on sick leave.

"I was just speechless. I couldn't believe in this day and age someone would hold that belief and also express it," she says.

Since Const. Cuthill filed her grievance, Mr. Momy said he has been made aware of other cases in which female officers are claiming discrimination.

In one instance, a female constable lost an $8,000 premium in pay when she was demoted from an investigator's position to a desk job within the same section after becoming pregnant, says Mr. Momy. While the department is required to accommodate a pregnant officer by placing her on light duties, it shouldn't be at a financial penalty to the officer, he says.

"Members who work hard to get where they are should not become afraid of becoming pregnant," says Mr. Momy, adding male officers are also routinely being told what dates they can and cannot take parental leave. "That's ancient thinking. The service as a whole needs to change the way that they do business."

In 2006, 21 female officers took maternity leave, while 50 male officers took parental leave. While female officers traditionally take a year-long leave, male officers usually take about 10 weeks leave, says Ms. Roy, although they can take up to 37 weeks.

Const. Cuthill says she never wanted to file a grievance, but felt she had no choice when it became clear the department and union's interpretation of the temporary transfer policy differed so widely. She says fighting the policy became a matter of "principle."

"I know there will be people who think I am a troublemaker. They can think what they want. I was being discriminated against, I was being transferred against policy and human rights and that speaks for itself," she says.

Const. Cuthill, who didn't ask for her old position back, now works at the information desk at the east division headquarters on St. Joseph Boulevard.

After being approached by several co-workers who said they too had experienced a similar situation, Const. Cuthill says she has no regrets about taking on the police service.

"I know that the precedent has been set and that's what I set out to do," says Const. Cuthill. "I think I would have regretted it if I hadn't filed a grievance because I would have seen them do it over and over again."

aseymour@thecitizen.canwest.com

 

© Ottawa Citizen 2007