Cross-Reference to The Law of Work Book
This entry relates to the scope of the definition of Disability and Sex discrimination under Human Rights Law, which is explored in Chapter 27 within the Regulatory Regime.
April 5, 2016
The CBC reported on a recent decision in which the Ontario Human Rights Tribunal ruled that a “miscarriage is a disability”. The lawyer for the complainant is quoted as saying this is a game-changer for women who suffer miscarriages. Here is a copy of the decision.
The applicant missed about 3 weeks of work after she suffered a deep tissue injury resulting from a fall in January 2013, which I presume was not work-related. Six months later she missed 2 more days of work due to a miscarriage. She claimed in the complaint that she suffered “severe and
disabling depression” as a result. However, at the hearing, the applicant apparently changed her position and claimed that she was not alleging she was disabled because of depression.
In February 2014, the applicant was terminated. When she asked why she was told to “draw you own conclusions”. She filed a human rights complaint arguing that she was terminated either because of absences due to disability or poor performance that was a result of the disabilities.
After a hearing, the employer moved that the complaint should be dismissed because it fails to disclose a winnable case because the evidence did not disclose that the complainant had a disability. This interim decision deals only with the issue of whether the complainant established she was disabled during the relevant time period. The question of whether the disability was a reason for the termination is left for another day.
The applicant suffered from two disabilities, according to the OHRT.
Firstly, the deep tissue injury resulting from the slip and fall that caused her to miss about 3 weeks was a disability. The Tribunal found:
An injury of this nature is not a common ailment, nor is it transitory. It is different from the flu and the common cold, which take a few days to get over and affect many people. The injuries experienced by the applicant impacted her ability to participate in the workplace (and society) because she was off work for an extended period of time.
This ruling is in the legal grey area, it is neither clearly correct nor clearly wrong in my opinion. Reasonable informed human rights lawyers could disagree. The case law is clear that a flu or temporary ailment is not a ‘disability’, but where do we draw the line between a temporary incapacity due to injury and a ‘disability’? In Kalam v Brick Warehouse, the Tribunal ruled that a twisted ankle was not a disability, but there the employee missed only 3 days. In Anderson v. Envirtech Office Systems, the Tribunal ruled that bronchitis is not a disability.
In this case, the Tribunal ruled that a physical injury that prevents an employee from working for 3 weeks moves beyond a short term temporary ailment like a cold or flu and into the scope of a disability. This could be a useful ruling for all those workers who suffer various ailments that keep them from work for 3 weeks or more. Note that had the complainant’s slip and fall occurred at work, she probably would have been entitled to workers’ compensation benefits and in that case she would clearly have failen with the definition of a “disability” because of part (e) of the definition of disability in the Human Rights Code. Do you think it is strange policy that a disabling injury that occurs at work is a disability but the same injury occurring outside of work is not?
Secondly, the Tribunal ruled that the miscarriage constituted a disability. This is the part of the decision that caught the media’s attention. Here’s what the Tribunal wrote:
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.
The miscarriage only caused a two day absence. So this is clearly in the short term ailment category, but the Tribunal rules that it is “not a common ailment”, and that the applicant “continues to experience significant emotional distress” as a result of the miscarriage.
If there was medical evidence that the miscarriage caused depression then there would be no issue: depression is a disability. However, in this case the applicant testified that she was not alleging that she was clinically depressed, and there was no medical evidence proving she was, although the complainant testified she was experiencing “emotional distress”. Nevertheless, the Tribunal ruled that the miscarriage “is a disability”, not that the miscarriage caused a clinical psychological disability.
A narrow reading could mean that a miscarriage that causes significant emotional distress for a year or more is a disability within the meaning of the Code, even absent a clinical finding of depression.
A broader interpretation is that any absence related to a miscarriage is disability-related for the purposes of the Human Rights Code.
If the first interpretation is applied, then this case is useful to women who suffer a miscarriage, but in practice, many women who suffer from “significant emotional distress” extending over a long period after a miscarriage would, I presume, already have had a pretty good chance of being able to persuade the Tribunal that they were suffering from sort of clinical, psychological ailment that would qualify as a disability.
If the second, broader interpretation is applied, then women would not need to establish a link to clinical depression to argue that discrimination on the basis of miscarriage is a disability. If the discrimination is related to the miscarriage, then it is discrimination based on disability. An employer that fired a woman for missing a couple of days after a miscarriage (beyond being a real prick of an employer), would be unlawfully discriminating against the woman. The fact that the miscarriage causes only a temporary physical incapacity, maybe even of less duration than a common cold, would not matter. Firing someone for missing two days due to a cold would not be discrimination based on disability, but firing a woman who misses two days after a miscarriage would be.
Of note too is that the Tribunal states that the argument could have been based on “sex” discrimination, or the intersection of sex and disability. In spirit, that line of argument is consistent with the Supreme Court of Canada’s ruling in Brooks v. Canada Safeway, where the Court ruled that discrimination on the basis of pregnancy is sex discrimination. Justice Dickson wrote there that “it is only women who bear children; no man can become pregnant… it is difficult to conceive that distinctions or discrimination based upon pregnancy could ever be regarded as other than discrimination based upon sex.” This argument reminds me too of a recent debate in England about whether women who miss work due to menstruation-related illness are ‘disabled’.
Questions for Discussion
1. Do you agree with the ruling that any injury that incapacities an employee for 3 weeks or more should constitute a ‘disability’?
2. Which argument do you think is the stronger one: That adverse treatment by an employer related to miscarriage-related absences is discrimination based on disability, or that it is discrimination based no sex?
3. Do you agree that an absence due to a miscarriage should be treated as an absence based on a disability?
4. Should absences related to physical pain associated with menstruation also be treated as disability-related absences?