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.
The case of Mou v. MHPM Project Leaders may be found here: http://www.canlii.org/en/on/onhrt/doc/2016/2016hrto327/2016hrto327.html.