Accounting for Law
Employment & Labour, Human Rights

Recognition of miscarriage as disability 'highly significant'

A recent Ontario Human Rights tribunal finding that miscarriages should be considered a disability reflects a long-awaited new era of sensitivity for women, says Toronto employment lawyer Natalie MacDonald.

“I am absolutely delighted to see the law changing to address and reflect the psychological effects of pregnancy — miscarriage, obviously sometimes being a horrible consequence of it.” says MacDonald, co-founding partner of Rudner MacDonald LLP.

“It is highly significant that the Ontario Human Rights Tribunal has recognized miscarriage, and more importantly the psychological effects of a miscarriage, as a legitimate disability pursuant to the Human Rights Code," she tells AdvocateDaily.com.

In Mou v. MHPM Project Leaders, 2016 HRTO 327 (CanLII), the tribunal adjudicator made an interim decision that determined the negative effects of miscarriage to be a disability.

At the centre of the case was a woman who had a slip-and-fall accident in January 2013. The following June she had a miscarriage. Those incidents, along with her mother-in-law’s death, caused her to miss work days. Eight months later she lost her job.

MacDonald says she has raised the issue of the psychological effects of pregnancy as an employment lawyer, and also in her book, Extraordinary Damages in Canadian Employment Law, as an active proponent for change.

“Pregnancy is not only a physical issue, it’s a biological, physiological, emotional and, quite frankly, a spiritual journey that a woman experiences,” she says. “The loss of a baby or fetus can have dire consequences on the woman’s psyche and emotional well-being.

“I am a champion of this area of the law, in particular, because I feel that it is greatly undervalued what a woman goes through during her pregnancy.”

The principle that has been established with this decision is long overdue, she adds.

But MacDonald says the crux of the decision resulted from a misstep by the employer.

Her work performance had been evaluated, which identified a need for improvement in the delivery of objectives. But, MacDonald says, when the woman asked why she was being terminated, the employer said it was up to her to figure that out.  

“The employee was invited to draw her own conclusion with respect to why she was being terminated from her employment,” says MacDonald.

“I think it opened a door for her to do so and gave the tribunal the ability to link that back to the disability of both the slip-and-fall and the miscarriage. Had the employer not opened the door and allowed her to draw her own conclusions, I’m not sure the case would have been as successful, given the significant amount of time that passed between the two events.” MacDonald says.

The woman lost her job eight months after the miscarriage. Under most circumstances, that would likely be seen as a long enough period of time that one event wouldn’t be linked to the other, which is what the law requires in order to determine whether there is a breach, she says.

“To successfully defend a human rights claim of this nature, there must be enough distance between a return from pregnancy leave/miscarriage and a termination because the employer has to show that there is no linkage between the termination and the disability. The way employers establish that is by putting enough distance between the two,” says MacDonald. “One would normally think that there was enough distance between the termination and the actual disability to not argue or form a link. But I think it was the employer’s own callousness that led to the Tribunal being able to form that link.”

Employers are typically advised to keep terminations brief, to the point and to stick to what they are required to provide in terms of reasonable notice, she adds. The only time they should get into reasons is if they’re terminating for just cause.

Overall, however, MacDonald says the case reflects a new era of sensitivity around pregnancy issues for women.

“It takes us, hopefully, into a kinder and gentler assessment of human rights issues, particularly facing women,” she says, "and hopefully, a better understanding of what they endure."

 

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