Unprecedented ruling sees miscarriage classed as a disability

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An interim decision by Ontario’s Human Rights Tribunal could bolster female employees’ rights following a lost pregnancy and afford them greater protection under the code.

The case

In 2013, Markham-based Winnie Mou suffered a miscarriage which, combined with a number of other personal difficulties, triggered a “severe and disabling depression.”

As a result of her subsequent absences, Mou was unable to meet her required 1,800-hour target for the year and was warned about improving her ability to meet scheduled delivery objectives.
The following February, Mou was fired from her position at MHPM Project Leaders and claims bosses told her to “draw your own conclusions,” when she asked for a reason.

She went on to claim that the miscarriage and its after-effects constituted a disability and, given the timing and circumstances, her termination was directly linked to this and the employer failed to accommodate her health issues.

MHPM Project Leaders argued that Mou was unable to establish disability, asserting that “in order for an injury or illness to constitute disability, there must be an aspect of permanence and persistence to the condition.”

The adjudicator noted that miscarriage may already be protected under the ground of sex but ultimately disagreed with the employer.

“I acknowledge that a miscarriage may be covered under the ground of sex or as an intersection of sex and disability,” she began. “It also is not a common ailment, and it is certainly not transitory.

“It is clear from the applicant’s testimony that she continues to experience significant emotional distress from the miscarriage even today,” she added.

Employment lawyer Emily Shepard told CTV News that the decision – albeit interim – solidifies the protections already available to women and “makes it clear to both employees and employers that if a worker suffers a miscarriage, they are protected under the law.

“There’s a whole subset of individuals who have not had fortunate experiences with pregnancy, that can lead to disabilities, be they physical, be they mental,” Shepard said.
“By classifying a miscarriage as a disability, you widen the umbrella of protection to include those people, and very clearly include those people who end up having a disability or disabling condition as a result of a miscarriage or other complication in their pregnancy.”
 
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