In its recently released interim decision, Mou v. MHPM
Project Leaders, 2016 HRTO 327, the Human Rights Tribunal of
Ontario considered whether a woman's miscarriage constituted a
"disability" within the meaning of the Ontario Human
Rights Code ("Code").
Ms. Mou was an employee of MHPM Project Leaders. In 2013, she
had a difficult year, experiencing both a slip and fall and a
miscarriage, both of which caused her to have to take time off of
work. As a result, she did not meet her 1,800 hour annual target
and in both her interim and annual performance evaluations for
2013, Ms. Mou's supervisor specifically identified a need for
her to improve on her ability to meet scheduled delivery
objectives. Her employment was ultimately terminated in February
Ms. Mou commenced a human rights application alleging
discrimination on the basis of disability. She alleged that her
absences from work — caused by the slip and fall and her
miscarriage — were factors in her employer's decision to
terminate her employment. The employer brought a preliminary
request to have Ms. Mou's application dismissed on the basis
that both the slip and fall injury and her miscarriage did not
constitute disabilities pursuant to the Code. The employer
argued that in order for an injury or illness to constitute a
disability, there must be an aspect of permanence and persistence
to the condition. The employer further argued that the health
issues experienced by Ms. Mou in 2013 were temporary in nature and
she fully recovered from them. As such, they did not affect her
participation in the workplace or in society.
In her decision, which ultimately found that a miscarriage is a
"disability" within the meaning of the Code,
Vice Chair Jennifer Scott reviewed the definition of
"disability", noting that section 10(3) of the Code
provides that a disability does not have to be permanent. While the
Tribunal has consistently held that commonplace, temporary
illnesses such as a cold or the flu are not disabilities because
this would have the effect of trivializing the Code's
protections, miscarriage is not a common ailment and it certainly
is not transitory. Vice Chair Scott further relied on Ms. Mou's
testimony that she continued to experience significant emotional
distress from the miscarriage even to this day.
It is important to note that this is only an interim decision of
the Tribunal and it has not yet been decided whether the employer
MHPM Project Leaders violated the Code when it dismissed Ms. Mou.
However, the decision makes it clear that if Ms. Mou's absences
from work, which were caused by her miscarriage, were a factor in
MHPM's decision to terminate her, even though the termination
came approximately eight months following the absences, then this
would breach the Code.
For employers, this decision will serve as confirmation that, if
made aware that an employee is suffering from either physical or
emotional complications arising from a miscarriage, this will
trigger a duty to accommodate the employee's issues to the
point of undue hardship and will require the employer not to
discriminate against the employee on the basis of such issues. In
most instances, accommodation will be in the form of providing time
off work to heal or grieve. Certainly any adverse decisions that
may be linked to the miscarriage or time off due to a miscarriage
would constitute a violation of the Code.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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