Human Rights Tribunal classifies Miscarriage as a Disability

The Human Rights Tribunal of Ontario was recently tasked with deciding a case in which the applicant alleges that her employer discriminated against her by terminating her employment due to a disability, contrary to the Human Rights Code, R.S.O., 1990.

The woman's employer, MHPM Project Leaders, requested a dismissal of the woman's Application charging that it has no reasonable prospect of success.

Case example

In January 2013, she was injured in a slip and fall accident on ice and missed almost 3 weeks of work as a result of her injuries. Then in June 2013, the woman suffered a miscarriage a few months into her pregnancy, but took off only 2 of her vacation days before returning to work. Soon after that, her mother-in-law passed away.

Ms. Mou alleges that these incidents together triggered a serious and disabling depression.

When Ms. Mou sought medical treatment for her slip and fall accident, physicians diagnosed a deep tissue injury, which initially made it difficult for the applicant to move the left side of her body. She was also unable to type and was placed on strong pain medication.

Although she attempted to return to work a few times, she was not well enough to do so until almost 3 weeks after her fall. The applicant alleges that due to her absences from work, she failed to reach the required 1800-hour target for 2013, and her annual performance evaluation identified the need to improve and meet required deliverables. Her employment was subsequently terminated in February 2014, at which point she was told to 'draw her own conclusions' as to the reason for termination. 

The defendant employer argued that Ms. Mou's Application should be dismissed because she failed to establish a disability. Defendant counsel asserted that in order for a condition or injury to constitute a disability, it must have an aspect of permanence, unlike the applicant's condition which was temporary.

The Human Rights Code, section 10(a), defines a physical disability as follows. "Any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other appliance or device".

Further, under section(3) of the "Code", it clearly states that a disability is not required to be permanent, rather the "right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person" has or has had "a disability or is believed to" have" or "to have had" a disability".

In 2000, the Supreme Court of Canada broadened the definition of a 'disability', in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), to include a 'handicap' that may result from a physical limitation, an illness, a social construct, or an imagined limitation. It is the combination of these conditions that determines whether a person has a 'handicap'.

In making a determination, the courts must consider whether a real or perceived ailment causes a person to experience "the loss or limitation of opportunities to take part in the life of the community on an equal level with others." On the other hand, the Human Rights Tribunal has explicitly established that normal and common ailments such as the flu or strep throat, which have temporary affects, are not disabilities under the "Code".

The adjudicator for this case determined that both injuries that Ms. Mou experienced -- her slip and fall accident, and her miscarriage -- may be defined as disabilities. It was weeks before the applicant recovered from her slip and fall injuries, and the adjudicator disagreed that the temporary nature of this injury disqualified it as a disability. With respect to the miscarriage, it was concluded that this condition is not a common ailment, nor is it transitory. In fact, for many women, a miscarriage has long term psychological effects.

A fundamental complaint put forth by the applicant is that her employer treated her absences from work as a performance issue, when they were actually health issues. Further, as these health issues are linked to a disability, termination of her employment on this basis constitutes discrimination.

Although the issue of discrimination has yet to be resolved for this case, the determination that a miscarriage is a disability has an immediate and significant impact on employers. Employers are required to accommodate physical and psychological symptoms for employees who experience a miscarriage, including potentially approving time off for recovery. In the absence of such accommodation, an employer may face a Human Rights Code violation.

Rastin Gluckstein Lawyers are uniquely experienced in representing clients on Human Rights Code violations. If you were discriminated against or were unjustly accused, call Rastin Gluckstein Lawyers to fiercely defend your legal rights.