Disability has long been a protected ground under the Ontario Human Rights Code, which requires employers to accommodate employees with a disability to the point of undue hardship. The protected ground of disability is consistently given a broad interpretation by the courts and human rights tribunals. For instance, not only physical disabilities but also non-evident disabilities such as depression and other forms of mental illness are protected under the Code. A recent decision seems to extend this broad interpretation even further, including miscarriages in the definition of disability.
In Mou v MHPM Leaders the Ontario Human Rights Tribunal concluded that a miscarriage falls within the definition of disability. The Applicant brought a claim alleging that her employment was terminated because of discrimination related to disability after a series of events in 2013. The applicant missed time from work for a variety of reasons including injuries from a slip and fall, the passing of her mother-in-law and a miscarriage. As a result of these absences the applicant claimed that she suffered from depression and that her absences from work prevented her from achieving her required hours target for 2013. The employer terminated the Applicant's employment after a poor performance review.
Interestingly, the Applicant did not rely on her depression to establish a disability. Instead she argued that her disabilities were the slip and fall and the miscarriage. The employer argued that because neither of these events had an aspect of permanence or persistence, they could not be claimed as a disability. In deciding that the Applicant had established a disability, the Tribunal relied on definitions in both the Code and Supreme Court jurisprudence. In that regard, the Tribunal confirmed that a disability does not have to have an aspect of permanence and/or persistence and instead should be assessed in the broader context. As a result employers should be cautious in not providing accommodation to employees on the basis that the alleged disability is temporary or transitory.
Ultimately, the Tribunal held that the miscarriage was a disability in part because the Applicant's testimony demonstrated that she continued to experience emotional distress from the miscarriage. While we may take issue with the Tribunal's conflation of cause and effect, this decision does essentially establish a new ground of disability. As a result the employer's motion to have the application dismissed failed, as the Tribunal ruled that the Applicant had established a prima facie case.
Although only an interim decision (and CCPartners will continue to monitor this case's progress through the Tribunal's adjudication process), this case serves as a reminder that employers should be cautious when dealing with employees who have been absent from work or otherwise are not performing in their position as there may be an underlying reason for the conduct that may be protected by the Code. Moreover, employers should develop and/or review their policies and practices in responding to all disability-related request: of paramount importance is making sure to consider and respond to each case on an individual basis to assess whether accommodation is appropriate in the circumstances.
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