A miscarriage is a tragedy experienced by many women. It may result in physical complications, and there is often an associated period of loss and grief. But is having a miscarriage by itself a disability? And, if it is, what are the implications for classifying it as such?
In a case currently before the Ontario Human Rights Commission, Wenying Mou claims that her former employer discriminated against her in firing her. The claim of discrimination was put forward on the basis that several health issues, including her having a miscarriage during her employment, constituted a series of short term disabilities. In an interim ruling, the Commission found that “the applicant’s miscarriage is a disability.”
Recognizing that the case is ongoing and deals with a number of unique circumstances, not all of which are publicly known, we do not wish to comment on its validity. However, we are concerned about some of the implications of defining miscarriage as a disability. While we are all for extending protections for women in the workplace, we believe it is unnecessary to characterize miscarriage as a disability, and the decision could have adverse effects on perceptions of women’s health and pregnancy, as well as the labour market participation of other individuals with disabilities.
Firstly, we don’t think it is necessary to define miscarriage as a disability in order to provide protections to women dealing with the after effects of miscarriages. Much of the discussion in the media after the interim ruling was released hailed it as a step forward. After all, no one wants women who have had miscarriages to be discriminated against within the workplace. Yet, discrimination based on pregnancy and related conditions, including miscarriage, is already explicitly prohibited under the Canadian Human Rights Act and is covered by similar human rights legislation at the provincial level. Human rights cases involving pregnancy and/or miscarriage are usually pursued based on claims of gender discrimination and have been successful in the past. For example, the Human Rights Commission of Ontario recently ruled on these grounds in favour of a woman from Georgetown, Ont., after she was unfairly fired for being pregnant.
We’re concerned that defining miscarriage as a disability could have negative implications for women. Many women would disagree with the idea that their miscarriage was a disability given that they may hope for a healthy pregnancy and disability could be associated in their minds with a long-term, physical issue. In expanding the definition of disability to include the unwanted termination of a pregnancy, it is not clear what grounds there are for distinguishing miscarriage from pregnancy and other related conditions, like extreme nausea, and consequentially deeming them disabilities as well. Many women would find it off-putting and a step backwards to medicalize their experience as some type of disability. This could have further unintended implications for women, namely arousing assumptions that women are less capable of performing well in their professional lives because of their reproductive role. It is possible that this attempt to extend legal protection could indirectly lead to increased societal gender discrimination.
Perhaps our most significant concern is one that was expressed in the ruling as well, that there could be negative implications for people with disabilities if the definition of disability is extended to include more common ailments, rather than focusing on people who have more lasting impairments. While significant progress has been made in cultivating more inclusive workplaces and providing supports for various types of disability, barriers in the labour market persist, including accessibility barriers, prejudice, low wages, challenges in achieving higher education and systemic discrimination. This ruling may distract from these ongoing issues that people with disabilities continue to face in their struggle to be accepted and equally valued in the workplace.
Experiencing one or more miscarriages can be devastating, complex, and challenging. Much like some mental health conditions, it is often not publically disclosed due to a highly personal nature, the need for privacy throughout the grieving process, as well as the fear of potential consequences in a person’s social and professional life. Both a disability and miscarriage can render individuals quite vulnerable.
Even though we are concerned about the implications this case brings, we recognize that this ruling provides an opportunity to raise awareness of existing issues of disability, women’s reproductive health, as well as numerous barriers that women and people with disabilities still face in the workplace. In Ontario, between 30 to 50% of human rights claims cite disability as the grounds for their discrimination, and most are in the area of employment. More must be done to better support people with all types of disabilities in the workforce, including, but not limited to: more supportive employment programs, greater access to short-term disability insurance, as well as employer engagement to improve strategies for inclusive workplaces. By the same token, more must be done to uphold women’s rights in the workplace by raising awareness of women’s issues, removing the existing stigma related to reproductive health, and encouraging support within the corporate culture.
While it remains to be seen what the long-term effects of this ruling will be, we worry that characterizing miscarriage as a disability neither advances the rights of people with disabilities, nor the rights of women.