A miscarriage can be a devastating event. Now, in what some experts say sets a precedent for future cases and Ontario human rights law, it has been recognized by the Ontario Human Rights Tribunal as a disability.

Ontario woman Wenying (Winnie) Mou says she suffered a miscarriage in June 2013 that, combined with the death of her mother, triggered a severe depression which resulted in her missing work and not making her performance targets.

She alleges when her former employer MHPM Project Leaders let her go in February 2014 it was because of disability relating to an earlier accidental fall and the miscarriage.

The allegations have not been proven at the Human Rights Tribunal, and there has not yet been a final decision on the case, but defining miscarriage as a disability already has experts in the field talking.

In an interim decision March 14, 2016, tribunal vice-chair Jennifer Scott denied the employer’s request to dismiss the application on the basis the applicant hadn’t established a disability.

She wrote that she found Mou’s miscarriage to be a disability and that it was “clear from the applicant’s testimony that she continues to experience significant emotional distress from the miscarriage even today.”

Raquel Chisholm, the lawyer for MHPM Project Leaders, which, according to its website is now called Colliers Project Leaders, said she and her client had no comment.

David Doorey, a professor of employment law at York University, said the ruling has “carved out a new space within the meaning of disability” and gets to the issue of what a disability is.

“If a woman is fired for missing a couple of days after a miscarriage, until this decision, there would be some question of whether that would qualify as a disability,” he said.

“That’s certainly what lawyers for women in the future are going to argue this case means.”

Daniel Lublin, a Toronto employment lawyer and partner at Whitten and Lublin, said he thinks the decision will “enlighten” some companies to realize the reach of human rights legislation in the workplace.

“I’m not sure that companies are going to start rounding up the troops and saying, ‘oh we’ve got to revise our policies to fit in miscarriage,’ but I do think that companies should be more careful about not just pregnancy conditions, pregnancy-related issues,” he said.

For Kemayla Fleming, director of programs with the Pregnancy and Infant Loss Network, an organization that provides support for families, the decision is welcome but “doesn’t come as a surprise” given the long-term effects of a miscarriage.

Many families experience miscarriage as losing a child, she said, and it can lead to depression or post-traumatic stress disorder.

Fleming, who gave birth to a stillborn son named Harrison seven years ago, said she hopes the decision will make it easier for women dealing with similar situations and their male partners who may also need time off work after a miscarriage or still birth.

“The woman’s not alone,” she said of Mou.

Deborah Davidson, a sociology professor at York University who has worked with women grieving from miscarriages and stillbirths, said she hopes the decision will make employers more aware of the “consequences miscarriage has for women and families” and things they can do such as provide compassionate leave.

She said returning to work after a miscarriage can be “very traumatic and trying” for women, in part because of the “raised eyebrows” they can encounter from well-meaning co-workers who don’t understand what they have experienced.

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Miscarriage is all too often still “the elephant in the room,” she said, and often people don’t feel comfortable discussing it.

“I think it would behoove employers and human resources managers to put together a focus group of people who have experienced this,” she said.

Mou’s lawyer, Morgan Rowe of Ottawa firm Raven, Cameron, Ballantyne and Yazbeck, declined to comment as she did not have permission from her client to discuss the decision.