Ridout Barron


Could miscarriage be considered a disability?

Only a woman can know the reality of the emotional trauma experienced after the miscarriage of her unborn baby. Furthermore, not all women will experience a miscarriage, so only a portion of the population in Canada will ever understand this kind of pain. Perhaps this is the only reason why classifying miscarriage and its associated emotional distress as a disability seems new and revolutionary. Indeed, anyone who has gone through the experience might think differently.

In today's modern legal climate, it appears that opinions and understanding regarding miscarriage are beginning to change. In fact, an Ontario Human Rights Tribunal recently made an interim decision to classify emotional distress brought on by a woman's miscarriage as a disability.

The woman at the center of the case was fired from her employment in February 2014 as a result of performance problems. Those performance problems, the woman argued, were the result of a miscarriage she endured. In the middle of last month, the woman received a ruling in her favor, which defined her miscarriage as a disability and allowed her wrongful termination suit to move forward against her former workplace.

The female adjudicator, who ruled in favor of the woman, said that miscarriage is an uncommon ailment that is not transitory in nature. The adjudicator further said that it was clear to her that the woman was still suffering from her miscarriage to this day.

The adjudicator's decision set a major precedent for similar wrongful termination cases in the future. The woman's lawyer believes that the next woman who is penalized as a result of her miscarriage will have more power to stand up for her rights in this regard.

This ruling is not out of line with provisions set forth in the Canadian Human Rights Code. The code states that women shall receive workplace accommodation when they are suffering from pregnancy-related conditions, which include: stillbirths, abortions, miscarriages and conditions that arise as a result of these serious medial issues. According to the American Psychological Association, the loss of pregnancy can and should be classified as "traumatic loss."

Individuals who have suffered the traumatic loss of a pregnancy in Alberta, may be able to receive certain accommodations. By consulting with an employment law lawyer, employers and employees alike can learn more about what types of accommodations may be legally required in such circumstances.

Source: Huffington Post, "'Miscarriage Is A Disability,' Ontario Human Rights Tribunal Rules," Maham Abedi, April 04, 2016

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