An interim decision from the Ontario Human Rights Tribunal (OHRT) could mark a significant shift in what is and is not considered a disability in the province.
The March 14 decision Mou v. MHPM Project Leaders concerned a woman named Wenying (Winnie) Mou who experienced a series of events in 2013 — including an injury from a fall, a miscarriage and the death of her mother-in-law — that impacted her health, culminating in depression.
This caused her to be absent from work, which resulted in Mou failing to meet an 1,800-hour target for her delivery objectives.
In 2014, her employer decided to terminate her employment and Mou filed a human rights complaint, claiming discrimination with respect to employment because of a disability.
But MHPM said Mou’s application failed to establish a disability and that in order for an injury or illness to constitute a disability, there must be an aspect of permanence and persistence to the condition.
However, both the slip and fall and the miscarriage qualify as disabilities, according to OHRT vice-chair Jennifer Scott.
“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,” she wrote in the decision.
“It is clear from the applicant’s testimony that she continues to experience significant emotional distress from the miscarriage even today.”
And while Mou had recovered from her injury and her miscarriage at the time of termination, the human rights code does not require a disability to be present at the time of adverse treatment, said Scott.
“The protections under the code would have little meaning if an employer could terminate an employee because of disability-related absences provided the disability no longer exists at the time of termination.”
In the end, the request to dismiss Mou’s application was denied.
The decision is an interim one but its potential implications could still be interesting, said Stuart Rudner, founding partner at Rudner MacDonald in Toronto.
“It hasn’t been determined conclusively,” he said.
People who are injured and are temporarily unable to work may be protected by the code, he said.
“The same thing, arguably, could apply to someone who has a miscarriage and is temporarily impacted and unable to work.”
Although it is an interim decision, the outcome could still make things easier for the next woman who comes forward with a case about pregnancy loss, Mou’s lawyer, Morgan Rowe of Raven, Cameron, Ballantyne & Yazbeck in Ottawa, told CBC news.
“It should make it easier for the next woman who comes along who feels like an employer has relied on her miscarriage to penalize her in some way,” she said.
At the same time, this was a very specific case with a combination of different factors affecting the applicant, according to Erin Kuzz, founding member of Sherrard Kuzz in Toronto.
“Everybody is going to have a different reaction to an event like that,” she said.
Sometimes, as in this case, the psychological impact will last a long time and issues such as depression might arise. And depression alone was enough to find there was a disability present in this case, said Kuzz.
“I’m not sure that the vice-chair had to go as far as she went in terms of her categorical statement that a miscarriage is a disability. And, quite frankly, I would respectfully suggest that she went too far in making that statement because when you look at how you reach the conclusion that something’s a disability, it has to be something that’s more than transitory, and not something that happens to many people… a miscarriage happens to a lot of young women,” she said.
There are still issues that haven’t been clarified or decided in the interim decision, said Daniel Chodos, partner at Whitten Lublin in Toronto.
“One of the points that’s raised but not actually decided in the interim decision is whether there was a perception of a disability as opposed to an actual disability, because one is as good as the other if you’re arguing a case based around a disability. A perception of the employer can still create liability for the employer,” he said.
The important takeaway for employers and employees alike is this decision moves the needle just a little bit away from the permanency argument in regards to what is a disability, said Chodos. The decision expressly rejects the idea that a disability must be permanent.
“What it can’t be is entirely transitory — it can’t be a common cold, it can’t be a flu, it can’t be a bruise, anything like that,” he said.
“And all disabilities are not created equal. One person’s miscarriage may have a much more serious effect that someone else’s, and it may cause them to require very different levels of accommodation — which is where this decision is going next.”
Miscarriage and mental health
This case was a very clear example of the intersection or overlap of two conditions — the miscarriage itself and the resulting depression and mental health issues.
“Depression is not an uncommon experience after miscarriage — or the broader term would be perinatal loss,” said Deborah Davidson, associate professor in sociology at York University in Toronto.
“But while grief is not a mental illness condition itself… (there are) systemic barriers and attitudinal barriers that can add to grief and spin it in a whole other direction where (the employer is not) providing the social support.
“Everyone who experiences it has different understandings and ways to formulate their experiences and think about it.”
However, the majority of families that experience a miscarriage do experience it as a loss and likely experience some degree of grief, said Kemayla Fleming, executive director of the Pregnancy and Infant Loss Network in Pickering, Ont.
“What we do know is that 75 per cent of families that do experience a miscarriage feel it as the loss of a child. And with the loss of a child, like any form of grief, you could experience depression, post-traumatic stress disorder, and post-partum mood disorders as well,” she said.
To this point, that has been kind of a knowledge gap for employers, she said.
“It’s been something we’ve been so silent about. Families have a miscarriage, take a day off work, and return to work like nothing’s happened,” she said.
“This, hopefully, will open up the door so more people feel comfortable letting their employers know and requesting adequate time off so that they can heal.”
It’s important to remember grief takes time, said Fleming.
“There’s a bigger conversation about grief and bereavement here that’s taking place in addition to miscarriage loss,” she said. “Not only is the female experiencing the physical aftermath of the miscarriage, she’s experiencing the long-term effects of grief.”
That mental health impact isn’t just limited to the woman, said Davidson — her partner can also experience grief, depression and other mental health issues and may require some support.
“It’s not just about the woman,” she said.
Fleming agreed male partners are often overlooked when it comes to miscarriages.
“(Male partners) are experiencing a lot of these feelings as well… they experience a level of grief too, and there’s a whole other layer of complication for a male to come into the workplace and say, ‘My wife had a miscarriage, I need a few days to recover,’” she said.
The experience of a miscarriage is often minimized, said Davidson.
“Minimization is what occurs in miscarriage, in pregnancy loss, in early infant death. It’s prone to minimization and lack of validation by those who you would think would be or should be supporting us,” she said.
“You don’t really understand it unless you’ve been through it, and even if you’ve been through it, you can understand it differently.”
Sometimes employers can even be more supportive of pet loss than of a miscarriage or early pregnancy loss, said Davidson.
“We’ve come a great distance in terms of pregnancy loss later in gestation; certainly, hospitals have made a profound shift in how they and their health-care workers understand and treat women. (But, in general), a miscarriage is still an area fraught with misunderstanding and judgment.”
Impact on disability claims
Moving forward, some employers may be worried about a spike in disability claims, especially if they are unclear on what exactly constitutes a miscarriage, said Christine Thomlinson, co-founder and co-managing partner at Rubin Thomlinson in Toronto.
“One of the challenges for employers when they’re trying to deal with disabilities in the workplace is the prospect that they don’t have clear information about what a disability is and what their duty to accommodate is,” she said.
Some employers are shocked when they find out they may have a duty to accommodate even when no one has come to them and said they have a disability, as in the case of a miscarriage, said Thomlinson.
Also, miscarriages are generally very sudden, which is challenging both for the woman and her employer.
“To find yourself in a situation where something has come up that’s so unexpected, it can be so devastating because what was thought to be a wonderfully joyous thing has turned tragic, and you’ve got the added challenge of now addressing it in the workplace,” she said.
At the same time, miscarriages impact people very differently, said Kuzz.
“Looking at how someone reacts to it is the more useful analysis in terms of determining whether that event resulted in a disability for that person.”
It’s more about the intersection between the miscarriage itself and the mental health impacts than about just the miscarriage in isolation, she said.
Considering miscarriage as a potential disability is part of a broader trend in human rights legislation, said Rudner.
“The same argument could probably be made for abortion. In and of itself, maybe it’s a disability, maybe it’s not. But it could have impacts that interfere with one’s ability to work,” he said.
“It’s critical for employers never to reject any requests for accommodation out of hand, and particularly not to impose their own moral beliefs.”
Employers also need to be diligent about the duty to inquire, said Rudner — if an employer notices a change in performance or behaviour, there is a duty to inquire further rather than just dismissing that employee.
“It’s incumbent upon the employer to make inquiries if they have any reason to believe that it might relate to a human rights ground,” he said.
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