It’s not entirely surprising that the Ontario Human Rights Tribunal (the OHRT) rendered a decision recently, holding that a miscarriage constitutes a “disability” for human rights purposes.  What is perhaps less clear is what this will mean for employers.

Winnie Mou brought a human rights application against her former employer, MHPM Project Leaders, alleging discrimination on the basis of disability after she was fired from her job in February of 2014.  Ms. Mou claimed that she was absent from work for various reasons in 2013, including a miscarriage, and that, as a result, she failed to meet her performance targets for the year and she was subsequently fired.  MHPM launched a preliminary objection to Ms. Mou’s application arguing, among other things, that her miscarriage did not constitute a disability.

MHPM argued that, in order for an illness or injury to be a “disability” as defined under the Ontario Human Rights Code(the Code), there had to be an aspect of “permanence and persistence” to the condition.  A miscarriage, they argued, was a temporary condition from which Ms. Mou fully recovered and, therefore, did not qualify. The OHRT disagreed.

Holding that the miscarriage did constitute a “disability,” the OHRT noted that it is implicit in the language of the Codethat the employee’s condition need not be permanent.  Section 10(3) specifically provides that an employee is protected if he or she “has or has had a disability or is believed to have or to have had a disability.” However, a distinction was drawn between conditions which, despite not being permanent, might nonetheless present obstacles to full participation in society, and “normal ailments” like the flu and the common cold which the OHRT has declared not to be “disabilities.”

The OHRT found Ms. Mou’s miscarriage to be a disability. It was held that a miscarriage is not a common ailment and “certainly not transitory.” Ms. Mou’s evidence was that she continued to experience significant emotional distress as a result of the miscarriage more than 2.5 years after the fact. This was a preliminary victory for Ms. Mou. Her application will now be allowed to proceed, but in order to succeed as against MHPM, she will still need to show, among other things, that her disability was a factor in the decision to terminate her employment.

One of the reasons we study these decisions is to extract lessons that we can bring to our employer clients to help them avoid finding themselves in similar situations. One of the things that is not clear from this interim decision of the OHRT is whether or not Ms. Mou ever advised MHPM that she had had a miscarriage. It seems to me that it wouldn’t be unusual if she didn’t. Having a miscarriage is an intensely personal and difficult time for a woman and one that many are not interested in making public.

If Ms. Mou did not specifically tell MHPM that she had suffered a miscarriage, she will likely be arguing that there was information that the company had regarding her personal circumstances (which also included time she had taken off earlier in the year because of an injury she suffered and the death of a close relative) which they should have known could negatively impact her performance. Ms. Mou will likely suggest that MHPM had a duty to inquire as to whether or not her personal circumstances played any role in her failure to meet her performance targets. Had they done so, they would likely have learned of her miscarriage and would have become explicitly aware of their duty to accommodate her disability.

Now, it may be that MHPM has clear, non-disability-related reasons for having decided to end Ms. Mou’s employment. It’s also entirely possible that, had inquiries been made at the time, MHPM would have learned that there was, in fact, no relationship between the performance problems that Ms. Mou was exhibiting and the fact that she had suffered a miscarriage. In this sense and in my view, the case is not as important for its finding that a miscarriage constitutes a disability as it is as a reminder to employers of the following:

  1. When looking to fire an employee for poor performance, consider whether there is information in the employer’s possession suggesting that the employee may be suffering from (or has suffered from) some form of a disability.
  2. If there is or has been a disability, make proper inquiries to determine whether there may be some relationship between the disability and the performance problems.
  3. If there is a relationship between disability and performance, proceeding with the termination could bring about human rights liability.
  4. Even if the employer is not explicitly aware of the disability, employers can be deemed to have “constructive notice” of a disability when there are circumstances which would suggest some form of a disability. In this sense, employers can’t turn a blind eye, and should make proper inquiries in some cases even when they don’t have specific information about a disability.

The types of inquiries noted above must be made with great care and sensitivity. If an employer finds itself facing a situation where it is considering firing an employee for performance reasons and thinks there is any chance that a disability could be at play, they would be extremely wise to seek the guidance of legal counsel with experience in human rights matters. Counsel can help employers prepare a proper written record of the inquiries, and also provide objective input when analyzing the information that comes back. Employers who get to this point in the employment relationship can often make decisions out of frustration and impatience and such decisions can be far more costly than a few hours of a lawyer’s time.