Supreme Court of Canada clarifies scope of adverse effect discriminationFraser v. Canada (Attorney General), 2020 SCC 28 (CanLII)
In Fraser v. Canada (Attorney General), 2020 SCC 28, the Supreme Court of Canada found that a workplace policy of the RCMP amounted to unlawful discrimination because it indirectly institutionalized and perpetuated a long-standing source of economic disadvantage for women.
The case involved three female RCMP officers who participated in a job-sharing program in order to work reduced hours when their children were young. The RCMP had a pension “buy-back” policy which allowed officers who had taken a leave from work to “buy back” pension credits to erase gaps in full-time service. The RCMP informed the three officers that the job-sharing program constituted part-time work, and as a result, the officers could not benefit from the pension “buy-back” policy.
The Supreme Court of Canada found that the RCMP’s policy amounted to unlawful adverse effect discrimination.
Adverse effect discrimination exists when a discriminatory law or policy, which appears neutral on its face, has a disproportionate effect on members of a certain group. Put differently, adverse effect discrimination does not explicitly single anyone out, but indirectly places certain groups at a disadvantage.
The Supreme Court of Canada found that the RCMP’s policy had a disproportionate adverse effect on female officers who were most often the primary caregivers, who made up a majority of the participants in the RCMP’s job-sharing program and who were thereby placed at a systemic disadvantage when it came to pension benefits. In other words, the RCMP’s policy “institutionalized” female traits as a basis upon which to deny the benefit of the pension “buy-back” policy to job-sharing participants.
Takeaways for employers
Although Fraser involved an interpretation and application of the equality rights guaranteed by Section 15 of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada’s interpretation and application of adverse effect discrimination will serve as a strong precedent for human rights regimes across Canada which equally prohibit adverse effect discrimination on the basis of one or more enumerated grounds.
As a result, employers should consider the following takeaways from Fraser:
- One right does not correct one wrong: Employers should proactively consider the indirect adverse effects of a workplace policy on certain groups, even if the workplace policy is otherwise established to be ameliorative in nature. In Fraser, the fact that the pension “buy-back” policy was established to accommodate officers who took leaves from work did not cure the systemic inequalities which were perpetuated by the policy at the same time.
- Substantive equality rules: When establishing and applying a workplace policy, employers should strive for substantive equality, including by anticipating measures and exceptions that may be required to accommodate the needs of certain groups which may be adversely affected by the workplace policy.
- Illusion of employee choices: Differential treatment and indirect adverse effects can amount to unlawful discrimination even if employees seemingly have “choices” as to how a workplace policy affects them, particularly if such “choices” are not real choices at all. In Fraser, the women’s “choice” to work on a part-time basis was found to “often lie beyond the individual’s effective control”.
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