Miscarriage as Disability: Rights for Women Who Experience Pregnancy Loss

A recent decision of the Human Rights Tribunal of Ontario (“the Tribunal”) has reclassified miscarriage from a solely gender-based issue to one of disability.

The Decision

In Mou v. MHPM Project Leaders, the Respondent requested the Tribunal dismiss the application because Ms. Mou had failed to demonstrate that she had a disability.  Ms. Mou was employed by MHPM Project Leaders when she experienced a slip and fall and a miscarriage in 2013.  The employer argued that these incidents were temporary in nature and that Ms. Mou fully recovered from them so they could not be considered disabilities under the Human Rights Code (“the Code”).  The Tribunal disagreed.

The Tribunal held that section 10 of the Code does not require an applicant to prove that a disability is permanent. The Tribunal acknowledged that minor illness like a cold or flu should not be considered disabilities. However, in finding that a miscarriage is a disability, the Tribunal held that is it “not a common ailment, and it is certainly not transitory” and that women may experience significant emotional long-lasting distress from a miscarriage.

Impact on future Human Rights Cases

The Code prohibits employers from taking certain things into account when deciding to terminate an individual’s employment. For example, if a woman becomes pregnant, an employer cannot terminate her employment because of the pregnancy.  This would be considered sex-based discrimination.

Until Mou, this was true of miscarriage as well.  For example, in the decision Osvald v. Videocomm Technologies, the Tribunal held that the employer had discriminated against the employee on the basis of sex for terminating her employment after learning of her miscarriage.

Previously, if a woman experienced pregnancy loss and then lost her job, she had to show that the employer took the miscarriage into account in terminating her employment.  Or, she had to show that a disability, like depression, arose from the miscarriage and the employer terminated her employment due to that disability.

Now, a woman can state that pregnancy loss itself is a disability.  If the miscarriage affects a woman’s work performance, for example, and the employer takes the performance into account in terminating the employment, this could be a breach of the Code on the basis of disability. This would be true even if the woman had not received a diagnosis like depression.

The Mou decision likely arose because Ms. Mou failed to claim in her application that she was discriminated against due to sex.  Nonetheless, the decision increases the ways in which a women who have experienced discrimination due to a pregnancy loss can assert their rights.

If you have experienced discrimination on the basis of sex or disability a lawyer at MacLeod Law Firm is able to assist you. Please contact us at [email protected] or 647-204-8107.