Miscarriage ‘a disability,’ tribunal says
A miscarriage is essentially the same as a disability under Ontario human rights law, according to an interim finding by the Ontario Human Rights Tribunal.
The ruling means Wenyi ng ( Winnie) Mou has grounds to proceed with a human rights complaint against her former employer, MHPM Project Leaders, for wrongful termination.
According to adjudicator Jennifer Scott’s ruling, Mou had a bad fall in January 2013 and she was off work until late that month. In May, she found out she was pregnant, but miscarried in June. She took two days off and used vacation time. She was fired in February 2014 over what her employer says were performance issues.
It sought to have the case dismissed, arguing the health-related absences were not the same as a disability under the law.
Scott disagreed, ruling, “the applicant’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,” Scott wrote, referring to the fact that pregnant women are entitled to workplace leave, regardless of whether the birth results in a live infant. She goes on to note miscarriage is “not a common ailment or transitory,” like the flu or strep throat, which are not protected under disability provisions. But nor does a disability need to be permanent for an employee to be protected by human rights law.
The ruling notes that distress does not need to pass the threshold into clinical depression to be protected.
Just as the injury from the fall “impacted her ability to participate in the workplace,” Scott writes, Mou “continues to experience significant emotional distress from the miscarriage.”
Psychiatrist Simone Vigo, head of the Reproductive Life Stages Program at Women’s College Hospital, says fullblown clinical depression, anxiety or post- traumatic stress disorder is not common among women who’ve lost pregnancies, but feelings of depression and anxiety are.
“Not everyone is going to have a mental health problem, but most people are going to experience psychological distress of some sort, and that deserves attention and not to be swept under the rug,” she said.
Employment lawyer Daniel Lublin has seen many wrongful dismissal cases involving pregnant or recently pregnant women, but never before one specifically about pregnancy loss.
“This might be taking it one step further to say you don’t have to have a baby to have the protections of the human rights code,” he said.
For employment lawyer Howard Levitt, the argument isn’t novel. The logic “flows directly from existing jurisprudence” protecting disability even for short- term, but serious, ailments. And, he also cited the fact there could be an intersecting sex-based claim under human rights law.
The Canadian Human Rights Code protects not just pregnancy, but all related conditions, including miscarriage and still birth, or even bed rest, to protect women’s employment.