Employee’s miscarriage a disability: Tribunal

Injury from a fall and a miscarriage followed by depression were disabilities that resulted in employee’s inability to work

An Ontario employee’s miscarriage was a disability which may require accommodation by her employer, the Ontario Human Rights Tribunal has ruled.

Winnie Mou of Markham, Ont., suffered a deep tissue injury in January 2013 that required heavy pain medication. She had difficulty moving one side of her body, so attempts to return to work were initially unsuccessful. Her employer, MHPM Project Leaders, wasn’t able to provide short-term disability benefits, so she took sick days until she was able to return on Jan. 21.

In May 2013 Mou suffered a miscarriage, followed by the death of her mother-in-law shortly thereafter. These two events led to severe depression, which disabled Mou and required her to take time off work. Because she had used up her sick days in January, Mou had to use vacation leave. Mou wasn’t officially diagnosed with depression until 2014.

Mou’s absences in January and June led to her falling short of her targeted hours for 2013. In her annual performance evaluation, her supervisor told her she needed to improve her ability to meet scheduled delivery objectives and she received a rating of “improvement and/or further development is required to consistently meet job expectations.”

On Feb. 27, 2014, Mou’s employment was terminated. When she asked why, she was told to “draw your own conclusions.”

Mou felt that the issues MHPM had with her performance were related to the time she had to take off because of her injury, miscarriage, and depression and MHPM’s failure to accommodate her issues. She filed a complaint of discrimination based on disability.

MHPM  filed an application to dismiss the complaint on the basis Mou did not have a disability and therefore it couldn’t have played a role in her termination of employment.

MHPM argued that for an injury or illness to qualify as a disability, there had to be an element of permanence and persistence to it. Mou’s health issues were temporary and she fully recovered from them, so they didn’t affect her participation in the workplace or society, said the company. In addition, there was no depression diagnosis until after Mou’s termination, so that wasn’t a factor in the dismissal, it said.

The tribunal noted that the Ontario Human Rights Code defined a physical disability as “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness.” It was also important that the code referred to the right to equal treatment without discrimination "because a person has or has had a disability or is believed to have or to have had a disability.” This statement showed the code contemplated that a disability didn’t have to be permanent, said the tribunal.

The tribunal agreed that certain individual temporary ailments, such as a cold or flu, wouldn't be seen as a disability as they don’t hinder someone’s “full participation in society.” However, it found that Mou’s injury and miscarriage were more than just that.

The tribunal found that Mou’s January 2013 injury required three weeks to heal and kept her from working, despite the fact she tried to return to work twice during that time.   

“An injury of this nature is not a common ailment, nor is it transitory. It is different from the flu and the common cold, which take a few days to get over and affect many people,” said the tribunal. “The injuries experienced by (Mou) impacted her ability to participate in the workplace (and society) because she was off work for an extended period of time.”

The tribunal also found Mou’s miscarriage wasn’t a common or transitory ailment. Mou suffered “significant emotional distress” afterwards, even after she recovered physically. As a result, the miscarriage should be considered a disability that affected Mou’s ability to work, said the tribunal.

Though Mou had recovered from both her injuries by the time of her dismissal, the tribunal found the absences that played a role in her dismissal were disability-related.

The tribunal found Mou established that she had a disability and dismissed MHPM’s application to dismiss the complaint. See Mou v. MHPM Project Leaders, 2016 HRTO 327 (Ont. Human Rights Trib.).

Latest stories