In a recent interim decision of the Ontario Human Rights
Tribunal, adjudicator Jennifer Scott found that miscarriage could
constitute a "disability". The door was also left
open for employees terminated due to miscarriage to claim
discrimination due to sex.
In the case of Mou v. MHPM Project Leaders, Mou was off
work for approximately 3 weeks in January 2013 due to injuries
sustained from a slip and fall accident. She subsequently
suffered a miscarriage in June of the same year and was off work
for 2 days. Her employment was terminated in February 2014
and Mou alleged that the termination related to her absences from
work. In February of 2016, a hearing took place to determine
the threshold issue of whether Mou had established that she
suffered from a disability.
The employer argued that in order for an illness or injury to
constitute a disability, there must be some aspect of permanence or
persistence to the condition. In short, the employer argued
that Mou's health issues were temporary in nature and that Mou
fully recovered from them prior to her termination.
Adjudicator Scott felt otherwise. In coming to her decision
she noted that while normal ailments such as a cold or flu are
transitory, a miscarriage is not a common ailment and is not
transitory. In reaching that conclusion, Adjudicator Scott
made reference to the fact that Mou continued to feel
"significant emotional distress from the miscarriage" to
the date of the hearing.
No mention is made in the decision as to whether any expert
evidence was adduced by the employer with respect to whether
miscarriage is a common ailment and it is suspected that no such
evidence was provided. One wonders whether the decision might have
been different if the adjudicator had heard evidence to the effect
that at least 1 in every 4 pregnancies is believed to end in
miscarriage, or that a majority of women have at least one
miscarriage during their childbearing years. While there is
no doubt that miscarriage can lead to emotional distress and even
physical problems, it is possible that had this expert evidence
been provided, it might have affected the adjudicator's
conclusion that miscarriage is not a common ailment.
Separate and apart from the issue of the miscarriage, it is
clear from the decision that Mou's slip and fall injuries also
constituted a disability as they took approximately 3 weeks to
heal. Just as importantly, Adjudicator Scott made note of the fact
that the employer invited Mou to apply for short-term disability
coverage after her slip and fall, which is presumed to have been an
indication that the employer believed her to be disabled.
It is important to note that although the Tribunal concluded
that a miscarriage can constitute a disability, there has not yet
been a final hearing in this case and no determination has been
made as to whether Mou's disability was a factor in her
employer's decision to terminate employment.
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