Ontario Canada Breastfeeding Laws and Human Rights Commission Complaints
November 11, 2008 by Angela White, J.D., breastfeeding counselor
Filed under activism, breastfeeding, law, nursing in public
In light of the intense debate generated by the post on a pool owner asking a mother to breastfeed in the change room, it might be enlightening for all interested to review the Ontario, Canada law on breastfeeding in public.
Section 10(2) The Ontario Human Rights Code specifies:
The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.
R.S.O. 1990, c. H.19, s. 10 (2).
The Ontario Human Rights Commission (OHRC) developed a Policy on Discrimination Because of Pregnancy and Breastfeeding (PDF document) which further explains the law and its interpretation and implementation. It clarifies that the protections for pregnancy include the post-natal period, which includes breastfeeding. The policy statement elaborates:
You have rights as a nursing mother. For example, you have the right to breastfeed a child in a public area. No one should prevent you from nursing your child simply because you are in a public area. They should not ask you to “cover up”, disturb you, or ask you to move to another area that is more “discreet”.
There are also protections on the federal level. The Canadian Charter of Rights and Freedoms specifies:
15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
INFACT Canada explains what women can do if they have been harassed for breastfeeding:
Report the incident to the Human Rights Commission in your province. As commissions don’t handle many complaints about breastfeeding, individual officers may be unfamiliar with the issue and require some explanation of why this is discrimination, or why the provision of an alternative place to breastfeed is not enough. Be persistent. Contact a women’s rights organization, La Leche League or other group for help and support if you feel you are not being heard.
According to the OHRC website, complaints are now to be filed directly with the Human Rights Tribunal of Ontario.
Right on! Fight on! This blog is an excellent source of both legal and practical information regarding breastfeeding. You should write a book!
Thanks Angela. This is the research I found when I saw the first press release on this incident. I am not a Canadian lawyer so I wondered whether I had missed something. A plain reading of Ontario law makes this incident actionable discrimination and, from what I can make of the website for the administrative body charged with enforcing this law, this mother seems to have a mechanism for filing a complaint.
I won’t address the many comments to the previous blog entry which ignore the medical evidence that breastmilk in the pool poses no health risk - others did that quite well. However in answer to the “why would anyone want to breastfeed baby in or near a pool,” in my experience the most common reason is because the nursing mother has another child in the pool who needs to be supervised. Not that the reality of juggling responsibility for multiple children alters the discriminatory nature of the owner’s actions, but I think the commenters who think this mom is just a troublemaker vying for her fifteen minutes of fame need to get a touch of perspective.
Jake, I’m glad to hear your research agrees with mine.
According to this news report: http://www.upi.com/Top_News/2008/11/12/Mother_wants_right_to_breastfeed_in_pool/UPI-52291226497245/ the mother has filed a complaint with the Ontario Human Rights Commission so it appears she will be using this system.
My understanding of Canadian law is that breastfeeding discrimination, like pregnancy discrimination, is considered sex/gender discrimination. Always seemed to me sort of a legal “well, duh!” that has been largely unsuccessful in the U.S. It will be interesting to see how this case proceeds.
I am just curious as to what your opinion is on how breastfeeding is any different than other human body fluids? Federal regulations deem all human body fluids, this would include breast milk, as biohazards, so breastmilk is a potential source for infections. Also, seeing as how food and drink is banned in pool areas, should the government now allow drinks and food to be consumed in these areas. I always wondered where the government comes up with these breastfeeding laws. I once had the unfortunate luck of being stuck in a grocery line, while a woman directly behind me breastfed her baby. Now, nevermind the biohazard issue, the fact is that if I don’t want someone doing something that infringes in my privacy, wether it be directly behind me in a check out line, or in a swimming pool, where I will be swimming, than I have every right to complain and exercise my right to privacy too. The woman in this incident did not think about her repercussions and how they would affect others. Is it even safe to breastfeed in the water? etc. People who claim that breastfeeding isn’t dangerous?, need to do some more research. Breastmilk, once agian, is a bodily fluid. It is legally, in the same league as urine, saliva, blood, tissue, excrement, etc. It is BIOHAZARDOUS! If a child is caught peeing in a pool, they can get out! Chlorine does not kill all germs! It is extremely unsanitary to be adding more bodily fluids into a swimming pool’s waters, never mind the fact that trace amounts can still be spread through other interactions. Shessh. It is clear from this incident, this woman is only concerned about her needs, wants, and rights. Yet noone else is entitled to excercise their needs, their rights, and wants! Talk about double standard. Also, wasn’t this a privately owed pool? Why did this woman think she could organise a protest and then remark that the security hired for the protest was there to “intimidate” her?! Are you kidding me! So you have the right to protest, but security hired is only there for your detriment, and you’re angry because you should be able to stage a protest by using a privately owed facility and then breastfeeding in unicen with dozens of other women, in their pool? This is just nasty and sick,seriously!These woman sounds selfish, presumptious and sadly, very ill.
I was very glad to see a legal view point, Jake. I know that Canadian laws and US laws differ, but I was wondering…isn’t the pool owner innocent until proven guilty and the burden of proof upon the mother? So shouldn’t this be represented as “alleged” discrimination. Many in support of the mother have already tried and convicted the pool owner without the case seeing the court room.
Also, I’ve seen three different versions of the mother’s story, all in her own words. The latter versions seem to include details that are more in violation of her human rights than the previous versions. I know she was seeking PR help in the latter versions, so I start to wonder how much of these latter versions have an element of spin introduced into them. If all she has as “proof” was her word against the owner’s (the owner has a video for her defense which I think will be much stronger evidence than word of mouth), wouldn’t this seriously damage her credibility in the court?
Also, I’m failing to see how this is discrimination. The passage supplied seems to imply that the basis of the discrimination has to be because the defendant found the act offensive or indecent. In this case, the pool owner has expressed that she fully supports breastfeeding in public but her objection was due to perceived violation of health and safety laws that govern the operation of her pool. These laws don’t specifically mention “breastmilk” but do mention “bodily fluids”, and breast milk is a bodily fluid. The mother was not asked to leave the pool to a more discreet area (yes, a change room is more private, but the intent seems to be that is where the best/most comfortable seating was not to have the mother hide away. This same seating was available in the viewing gallery, which to me, is probably very open to the public and that was offered at the same time), or to cover up, or to even stop breastfeeding. There was a case in Manitoba which a store owner asked a breastfeeding mother to stop breastfeeding in a very expensive chair and move to a more secluded court yard. This case was dismissed, so simply being asked to move doesn’t seem to cut it in terms of discrimination. Here is a link to that case so you can read it for yourself and see if it is relevant to this discussion at all. http://www.gov.mb.ca/hrc/english/publications/morriseau.html
I would say she was “disturbed” but I don’t see how that could have been avoided while upholding the safety laws. Wouldn’t the pool owner have been negligent if she had a safety concern about an act she witnessed and then waited until that act was finished to act upon it? I would be disturbed if some lactivist came up to me while I was tandem nursing (I have two daughters, 28 and 7 months old) and say “way to go for nursing two, that’s awesome!”. Do I really have just cause to haul that lactivist’s butt into court on grounds of discrimination? In the past, I’ve let it go with ignoring them and hoping they go away. I didn’t really want to cause more attention than I was already getting and common sense told me that they didn’t mean to be hurtful. But several lactivists have told me that I was irresponsible for not fighting for my rights, so if I have just cause, I think I’ll do it next time.
The recent Walmart case is definitely discrimination, no doubt about it. I think this Newmarket case has generated so much interest in that it isn’t that black and white. I think the bottom line is “do health and safety laws trump human rights”? I know that someone that wears a turban for religious reasons (human right) is exempt from helmet laws (safety law), but by not wearing a helmet, that own person’s safety is at risk, not anyone else’s. In this case the safety risk wasn’t for the mother but for others and to me that is completely different.
Also, the BACE report was not available to the pool owner, the mother or the ministry at the time of the incident. So perhaps the pool owner and ministry were interpreting the health and safety laws based on outdated information. Are we allowed to mentally re-write laws once new information surfaces, or does the old law stand until a new law, with the corrected information, is on the books?
thanks a lot for offering your opinion!
Kelly,
I am not a Canadian lawyer so I have no idea how the Canadian Human Right Commission processes complaints. You are certainly right that at this point all that is available to the public are allegations. What acts constitute discrimination under the Canadian Code and whether any such acts occurred is for the Canadian system to determine.
As for possible health code violations, I don’t know if any regulations of a Canadian health department will be an issue. In the U.S, however, I am not aware of any health agency that deems breastmilk to be a “biohazard.” The CDC does not consider breastmilk a fluid for which universal precautions should be used.
The most striking benefit I currently see to the Canadian system is that it appears there exists a mechanism for determining whether discrimination has taken place and, perhaps, a penalty for discrimination if it is found. Sadly in most U.S. states there is no opportunity to present such claims.
I just want to say again, that under canadian and US federal regulations, any bodily fluid, this includes breastmilk, can (being the operative word) be deemed as "biohazardous". That means, given the circumstances, any bodily fluid is classified as such because of the nature of the source and the potential to be a risk of spreading infection, etc. In this case, the mother was nursing the baby inside the pool. Nevermind the fact that swimming pools have rules that state both food and drink cannot be consumed in or near the pool for safety and health percautions, but the fact is that once a bdily fluid is introduced into the water, the pool must be vacated immediately and a strict cleanup must ensue. I understand that this may be difficult to enforce in terms of kids urinating in pools, however small, blood, puke, etc is gorunds to have the pool vacated and cleaned. There are some supporters that say that breastmilk is not dangerous because there’s chlorine in the pool, etc. yet, chlorine does not 100% of germs in pools and considering that any change in temperature, even a few degrees warmer that the water becomes, there is more of a potential for bacteria to spread. Seriously, swimming pools need to be strictly safe gaurded to ensure that health is a priority. I am not even going to go into the problems that can arise when a mother decides to nurse her baby in a pool without properly showering herself!
Kelly & Rosie,
Yes - breastmilk is a bodily fluid (as in it comes out of the body) but so does sweat, tears, vomit, urine, and feces. Do we need to clean the pool for crying or if someone sweats in an aquafit class?
It has been deemed by the CDC (Center for Disease Control) - one of the world’s leading authorities infectious issues - that breastmilk is NOT a biohazard - NO universal precautions required. Please review the CDC’s own info - links have been provided time and again in many forums - I can not take the time right now to find it. If you can not locate it - I’m sure someone can post it for you.
To the person that didn’t understand how it is discrimination, Ontario law is clear. It says: “They should not ask you to “cover up”, disturb you, or ask you to move to another area that is more “discreet”.”
Essentially, if she had a right to sit on that step with her baby, then she also has the right to nurse her baby there.
I also wanted to clarify that this complaint would fall under the Ontario Human Rights Commission (not the Canadian Human Rights Commission). The Canadian Human Rights Commission would be used for any discrimination in a federally regulated environment. So, for example, the case against the airline WestJet, which is federally regulated, is being heard by the Canadian Human Rights Commission. However, swimming pools would fall under provincial jurisdiction, so it is Ontario.
In addition to being a breastfeeding activist, I am also a former lifeguard and pool manager. I know that there are more than enough chemicals put into any pool to deal with any potential contamination that might come from breastmilk. Kids pee in the pool everyday while we shouldn’t compare pee to breastmilk, I mention it only because the chemicals are in there to deal with things like that and they would equally deal with any contamination that might come from breastmilk.
However, in most cases none of that breastmilk would be getting into the pool. The milk goes directly from the mother’s breast into the baby’s mouth.
Jean. I’m very familiar with the CDC website, as I was once offered a position to work there and I frequently use the site as a resource in my professional life. Universal precautions apply to persons administrating health care as guidelines to prevent transmission of pathogens transmitted by blood and bodily fluids particularly HIV, HBV, and later, HCV. (http://www.cdc.gov/mmwr/preview/mmwrhtml/00000039.htm). Note that the CDC does not discouraged persons having frequent contact with breast milk from wearing gloves, a universal precaution, even though the risk of transmission is low. I point this out to show that the CDC does modify it’s own guidelines given different circumstances. In other words, context is important. The CDC does not see breast milk as a bodily fluid that transmits disease so there is no requirement for Universal Precautions, but makes no comment within the context of Ontario’s regulations of bodily fluids in a pool. A pool is not a health care setting (with the exception of first aid administered by a life guard, but again, that has nothing to do with pool regulations) and thus Universal Precautions do not apply. I am not familiar with the rationale behind the "no bodily fluids" in the pool regulation but agree that it seems rather silly since bodily fluids do enter the pool on a regular basis. If the rationale is to prevent the transmission of disease, I think it would be fair to extrapolate CDC’s Universal Precautions to Ontario’s health regulations governing pools. The risk of transmitting disease via breast milk is practically nil and the regulation needs to be clarified to exclude bodily fluids that don’t transmit disease, such as breast milk. If it is another rationale, then that argument doesn’t apply.
Annie, I’m fully capable of reading the law as Angela posted and yes, it is very clear. The law states that we are not allowed to ask a nursing mother to "move to a more discreet location". You seem to be forgetting the "more discreet location" part. Yes, in this case the mother was asked to move, but it was not "to a more discreet location", hence I don’t see the discrimination. There is precedent that being asked "to move" is not discrimination (Manitoba case) and being asked "to move to a more discreet location" is discrimination (previous cases in Ontario of mothers nursing in and around pools). The mother states that she was asked to move to a more discreet location and the pool owner states that she was not. I believe the burden of proof is on the mother, and that is why I find this case so fascinating and am looking forward to what the judge has to say about it. I believe the decision will be posted here: http://www.hrto.ca/NEW/decision.asp once it becomes available.