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Miscarriage may be labelled a disability in Ontario

A miscarriage is often misunderstood, especially in the context of the working world. This tragic event can often have debilitating effects, including depression and postpartum disorder, but women are still expected to return to work as if they are recovering from an illness such as the flu or a cold.

Recently, a miscarriage was recognized as a disability in an interim court decision on March 14, in the case of Winnie Mou. She was fired in 2013 for being unable to meet workplace targets after suffering a miscarried pregnancy. The interim decision says that the company fighting against Mou argued that “the Application should be dismissed because the applicant has failed to establish a disability. It asserts 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 judge rejected this argument and instead supported the notion that Mou was suffering from a disability. Instead she ruled: “I also find the applicant’s miscarriage is a disability. 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. It is clear from the applicant’s testimony that she continues to experience significant emotional distress from the miscarriage even today.” 

Interestingly, “permanence and persistence” are not a definitive part of a disability, as determined by Section 10 (3) of the Human Rights Code. A disability can be temporary and still apply to the definition. The judge’s inclusion of emotional distress as an integral identifier for a miscarriage is an important development.

Depression and other mental disorders are often dismissed in the workplace as an irrelevant reason for missing work. The inclusion of the emotional and long-term impacts of a miscarriage is a welcome clause to the definition of a disability. Many women will return to work without having managed the devastating emotional impacts of having a miscarriage, which can lead to further depression and illness.

By allowing women to heal outside of the workplace without losing their jobs, it validates the relevance of miscarriages. It will also (hopefully) open the doors for increasing acceptance of miscarriages and its associated causes for depression. There continues to be a tendency to hide this pregnancy-related issue and to avoid speaking of it.  This does not promote healing for the women who experience its after-effects and may also have impacts such as shame or hiding its existence furthering the emotional pain.

Hopefully, this case is settled in favour of Winnie Mou and it will have a positive effect on the future of women who undergo a miscarriage and need to take time from work. The legal system has the capacity to make sweeping legal changes to the Human Rights Code and this workplace mishap may just make Canadian legal history, modifying the Disabilities Act of Human Rights Code for the better.