Ontario Human Rights Tribunal: Miscarriage is a Disability

by Samfiru Tumarkin


Tuesday, April 5th, 2016 at 2:00 am


The Ontario Human Rights Tribunal has decided, through an interim finding, that a woman’s miscarriage is a disability. This could be the first ruling of its kind, one that might suggest a large-scale shift in the province’s disability law.

The decision comes by way of a wrongful dismissal case involving Winnie Mou.

The Markham, Ontario woman suffered a slip-and-fall in January 2013 that kept her from work for weeks. In that same year, she experienced the death of a family member, as well as a miscarriage.

She was fired by her employer in February 2014 over alleged performance issues. Her employer, MHPM Project Leaders, argued that health-related absences and a disability are separate under the law.

Adjudicator Jennifer Scott disagreed, deciding that Mou’s “miscarriage is a disability.”

“I acknowledge that a miscarriage may be covered under the ground of sex or as an intersection of sex and disability. It also is not a common ailment, and it is certainly not transitory. It is clear from the applicant’s testimony that she continues to experience significant emotional distress from the miscarriage even today.”

This decision significantly expands the definition of what constitutes a disability.

Traditionally, a disability was a serious medical condition that is likely to impact they person long term. This decision suggests that even more “temporary” medical conditions may get the protections understand the human rights code.

 

Chuck Tahirali, Senior HR Consultant with Samfiru Tumarkin LLP, explained what the decision means to employers and employees.

 

Read more about wrongful dismissals here.

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