Miscarriage Considered to be a Disability

Miscarriage affects many families and returning to work after having experienced one can be difficult for women who experience depression or post-traumatic stress disorder as a result.

Earlier this month, in the interim decision in Mou v MHPM Project Leaders, 2016 HRTO 327, the Ontario Human Rights Tribunal set a precedent for human rights law in Ontario by recognizing miscarriage as a disability. Although the final decision in this case has not yet been rendered, the definition of a miscarriage as a disability has already made headlines.

In this case, Wenying (“Winnie”) Mou brought an application to the Human Rights Tribunal alleging that her employment was terminated by MHPM Project Leaders because of her disability. Ms. Mou experienced a slip and fall accident in 2013, followed by a miscarriage and the death of her mother-in-law a few months later, which triggered a severe and debilitating depression. She was fired from her job in February 2014. In her application, she argued that a miscarriage is a disability, and that she was discriminated against by her employer because of that disability, contrary to the Human Rights Code.

Her employer filed a request to dismiss Ms. Mou’s application, arguing she had not established disability. It took the position that in order for an injury or illness to constitute a disability, there must be an aspect of permanence and persistence to the condition.

The adjudicator found that Ms. Mou had established a disability. Section 10(3) of the Human Rights Code provides that a disability does not have to be permanent. The adjudicator also found that miscarriage is a disability which, although it may not be covered under the ground of sex or as an intersection of sex and disability, it is not transitory. The adjudicator denied the employer’s motion to dismiss the application and Ms. Mou’s hearing was permitted to be continued.

To find out more about your rights, contact employment lawyer Peter McSherry online or at 519-821-5465.

To read the full decision, click here.