Disability has long been a
protected ground under the Ontario Human Rights Code,
which requires employers to accommodate employees with a disability
to the point of undue hardship. The protected ground of
disability is consistently given a broad interpretation by the
courts and human rights tribunals. For instance, not only physical
disabilities but also non-evident disabilities such as depression
and other forms of mental illness are protected under the
Code. A recent decision seems to extend this broad
interpretation even further, including miscarriages in the
definition of disability.
In Mou v MHPM Leaders
the Ontario Human Rights Tribunal concluded that a miscarriage
falls within the definition of disability. The Applicant brought a
claim alleging that her employment was terminated because of
discrimination related to disability after a series of events in
2013. The applicant missed time from work for a variety of reasons
including injuries from a slip and fall, the passing of her
mother-in-law and a miscarriage. As a result of these absences the
applicant claimed that she suffered from depression and that her
absences from work prevented her from achieving her required hours
target for 2013. The employer terminated the Applicant's
employment after a poor performance review.
Interestingly, the Applicant did
not rely on her depression to establish a disability. Instead she
argued that her disabilities were the slip and fall and the
miscarriage. The employer argued that because neither of these
events had an aspect of permanence or persistence, they could not
be claimed as a disability. In deciding that the Applicant had
established a disability, the Tribunal relied on definitions in
both the Code and Supreme Court jurisprudence. In that
regard, the Tribunal confirmed that a disability does not have to
have an aspect of permanence and/or persistence and instead should
be assessed in the broader context. As a result employers should be
cautious in not providing accommodation to employees on the basis
that the alleged disability is temporary or transitory.
Ultimately, the Tribunal held that
the miscarriage was a disability in part because the
Applicant's testimony demonstrated that she continued to
experience emotional distress from the miscarriage. While we
may take issue with the Tribunal's conflation of cause and
effect, this decision does essentially establish a new ground of
disability. As a result the employer's motion to have the
application dismissed failed, as the Tribunal ruled that the
Applicant had established a prima facie case.
Although only an interim decision
(and CCPartners will continue to monitor this case's progress
through the Tribunal's adjudication process), this case serves
as a reminder that employers should be cautious when dealing with
employees who have been absent from work or otherwise are not
performing in their position as there may be an underlying reason
for the conduct that may be protected by the Code.
Moreover, employers should develop and/or review their policies and
practices in responding to all disability-related request: of
paramount importance is making sure to consider and respond to each
case on an individual basis to assess whether accommodation is
appropriate in the circumstances.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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.
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