An interim decision from the Human Rights Tribunal of Ontario’s last month has put employers on notice about the need for sensitivity towards employees who’ve had a miscarriage.
The tribunal’s decision “shows that we’re recognizing different things that potentially need accommodation in the workplace,” says Ritu Mahil, an associate at Lawson Lundell LLP, of the March 14 interim ruling in Mou v. MHPM Project Leaders.
“I acknowledge that a miscarriage may be covered under the ground of sex or as an intersection of sex and disability,” wrote adjudicator Jennifer Scott in a ruling that dismissed the employer’s request to dismiss the case.
The interim decision, which set a precedent for future discrimination cases, relates to a case filed with the tribunal by Winnie Mou of Markham, Ont., against her employer. Mou suffered a physical injury and miscarriage in 2013. Combined with her mother-in-law’s death, the incidents sent the woman into a deep depression.
Mou alleges her employer fired her in 2014 without giving her specific reasons. Her employer, however, has suggested numerous absences and a drop in work performance were factors. Mou argued her employer failed to accommodate her disabilities and alleged they were a factor in her termination.
Mahil suggests employers faced with poor performance or absenteeism issues should look into whether a disability might be an issue. “In the case of a miscarriage, it’s a very intensely personal situation that employees may or may not share with their employers,” she says.
“If there’s circumstances to suggest some form of disability, then employers can’t turn a blind eye. They need to make the proper inquires even if they don’t have specific information.”
According to Daniel Chodos, a partner at Whitten & Lublin, showing sensitivity and respect goes a long way in preventing future conflicts. He also suggests employers should reach out to someone who might need accommodation through a tactful letter.
“It could include something along the lines of, ‘We feel terrible for you; we want to make sure you’re in a position to return to the workplace in full capacity, and it might be helpful if you let us know if you require any form of accommodation. If this requires us communicating with your physician, we’re happy to do that,’” says Chodos.
Drafting a robust anti-discrimination and anti-harassment policy could also help to reduce liability.
“Within the policy, there ought to be a clear procedure to report any requirements for accommodation and what the process will be if there is a request,” says Chodos.
While taking the precautions above may seem obvious, Chodos says that failing to accommodate employees under the Human Rights Code can bring a heavy price to employers that face the possibility of unwanted legal exposure.
They might have to to rehire an employee and pay lost wages between termination and reinstatement, he says, noting that added downside of “the embarrassment of a public decision like this that gets media attention.”
Under the family status category in the Human Rights Code, according to Chodos, employers might also need to accommodate men who have lost an unborn child if it causes them great distress.
Although men wouldn’t have a physical disability in that situation, the legislation could apply to the psychological repercussions they face from a miscarriage.
While the decision allows Mou’s case to go ahead, it doesn’t mean she has established that a disability was a factor in her termination. “No finding has been made as to whether the applicant’s disability was a factor in the respondent’s decision to terminate the applicant’s employment,” wrote Scott.