Advertisement
News by VICE

A Canadian Tribunal Rules That Having a Miscarriage Should Be Treated Like a Disability at Work

The declaration, related to one woman's complaint about being fired from her job, opens the door for people to argue against discrimination based on miscarriage.

by Tamara Khandaker
Apr 7 2016, 4:40pm

Photo via Flickr

Miscarriage has been recognized as a disability for the first time in Canada in a precedent-setting decision by the Ontario Human Rights Tribunal that could change the way pregnancy loss is treated in the workplace.

The declaration, related to one woman's complaint about being fired from her job, opens the door for people to argue against discrimination based on miscarriage — and adds it to a list of conditions that have been deemed disabilities in a workplace context, such as alcoholism, panic attacks, dyslexia, insomnia, fear of flying, and chronic headaches.

The ruling centers around the case of Wenying (Winnie) Mou, a Markham woman who filed a complaint with the tribunal, alleging that in 2013 she suffered through a series of traumatic events, including a miscarriage, the death of her mother-in-law, and a bad fall that caused her to miss work.

Her mother-in-law's death and the miscarriage triggered "a severe and disabling depression," forcing her to take off more time from her job at a building and infrastructure project management firm, and as a result, miss performance targets.

Mou was fired in February of 2014, and when she asked for an explanation, she said she was told "draw your own conclusions".

The allegations haven't been proven in court, but in an interim decision, adjudicator Jennifer Scott ruled that miscarriage was a disability, dismissing employer MHPM Project Leaders' application to dismiss the complaint.

MHPM Project Leaders argued that the complaint should be dismissed because Mou hadn't established a disability, since to do so "there must be an aspect of permanence and persistence to the condition." MHPM Project Leaders called the health issues temporary, and claimed the applicant had "fully recovered" from them.

'The depression and anxiety endured by women and men after a miscarriage can continue for years.'

While they acknowledge Mou had had a "bad year," they said a "bad year" does not constitute a disability, Scott wrote, in summarizing the dismissal request.

Scott rejected the employer's argument, writing that it was "clear from the applicant's testimony that she continues to experience significant emotional distress from the miscarriage even today."

Lynn Davis of the Pregnancy and Infant Loss Network explains that 75 percent of families who suffer a miscarriage see it as the loss of a child.

"The depression and anxiety endured by women and men after a miscarriage can continue for years," said Davis, adding that post-traumatic stress disorder and postpartum mood disorder may also affect women who have miscarriages.

Michael Lynk, a law professor at Western University, said the decision is "well within the reasoning of how human rights tribunals and courts add to the definition of disability," noting that past cases have also deemed things like alcoholism, panic attacks, dyslexia, insomnia, fear of flying, and chronic headaches to be disabilities.

While he doesn't believe there will be a flood of cases based on miscarriage as a disability in the near future, Lynk explains that lawyers will no longer have to argue to establish it as one. The decision opens the door for arguments of discrimination based on miscarriage, where there may not have been one before.

The interim decision means Mou's complaint will be heard by the tribunal.

Follow Tamara Khandaker on Twitter: @anima_tk