April 11, 2016
The Ontario Human Rights Tribunal has recently issued an interim decision confirming the effects of a miscarriage can meet the definition of “disability” under the Human Rights Code.
Wenying (Winnie) Mou (the “Employee”) worked for MHPM Project Leaders (the “Employer”). In January of 2013, the Employee suffered a serious slip and fall accident which kept her out of the workplace for a few weeks. A few months later, the Employee learned she was pregnant with her first child. Shortly into the pregnancy, however, the Employee suffered a miscarriage which resulted in her missing an additional two days of work. As a result of these absences, the Employee failed to meet her hourly targets for 2013. In February 2014, relying on performance issues tied in part to the Employee’s workplace absences, the Employer terminated the Employee.
Shortly thereafter, the Employee filed a human rights complaint alleging the termination of her employment amounted to discrimination on the basis of a disability contrary to the Code. In response, the Employer filed a motion to dismiss the complaint arguing that the health issues faced by the Employee were temporary in nature and therefore did not have the requisite aspect of permanence or persistence to meet the definition of a disability under the Code.
In issuing its interim decision on this threshold issue, the Tribunal relied on a long line of case law confirming that although the definition of disability should not be interpreted so as to include “normal”, “common” or “transitory” ailments, it should nevertheless be given a broad interpretation. Applying this broad interpretation approach, the Tribunal determined that the Employee’s injuries resulting from her slip and fall that took almost three weeks to heal were neither “common” nor “transitory” and therefore met the definition of disability. The Tribunal also concluded that the Employee’s miscarriage met the definition of disability on the facts having regard to the fact that the Employee continued to experience significant emotional distress arising from her 2013 miscarriage – so much so that the distress continued to be evident at the time of the hearing in 2016. In reaching these conclusions, the Tribunal noted that the Code does not require a disability to be present at the time of the adverse treatment – rather, the question is simply whether the disability, regardless of when it occurred, was a factor in the adverse treatment.
This decision confirms that employers should proceed with caution before taking any action against an employee for performance issues that could be linked in any way to a health ailment, even if that ailment is not permanent. Any failure to do so could give rise to a successful claim of discrimination on the basis of a disability.