The Supreme Court of Canada’s recent decision in Fraser v. Canada (Attorney General), 2020 SCC 28 (“Fraser“) raises fundamental questions about how allegations of discrimination under human rights legislation and the Canadian Charter of Rights and Freedoms (“Charter“) will be adjudicated in the future. At a minimum, employers should carefully review distinctions drawn under workplace policies, practices, and benefits plans—particularly distinctions between full-time employees, part-time employees, and employees on a leave of absence—to ensure those distinctions do not disproportionally impact women with children.
Fraser involved three female RCMP members (“claimants“) who took advantage of the RCMP’s job-sharing program. The job-sharing program was introduced as an alternative to an unpaid leave of absence, allowing participants to split the duties and responsibilities of a full‑time position. This allowed participants to continue their work but with fewer hours. Almost everyone who enrolled in the job-sharing program were women with children, and most participants took advantage of the job-sharing program to accommodate their childcare responsibilities.
The key issues in Fraser are concerned with a statutory pension plan under which RCMP officers who participated in the job-sharing program were treated differently than those who took an unpaid leave of absence. Full-time employees who took an unpaid leave of absence were provided with a “buy-back option,” allowing them to elect to make contributions equivalent to two or two and a half times the amount they would have paid had they been working. Employees who elected to do so were credited with full-time pension service credit even though they were not working, allowing them to retire with a pension equivalent to that which they would have received had they not taken a leave of absence without pay.
Unlike employees who took an unpaid leave of absence, job-sharing participants were not provided with the buy-back option. Job-sharing participants were treated like all other part-time employees, accumulating service based on the proportion of full-time hours they worked. Although job-sharing participants were provided with some part-time service credit for the hours they did work, they were unable to buy back the remaining service credit, and therefore unable to retire with a pension equivalent to that which they would have received had they not participated in the job-sharing program.
The three claimants alleged that the differential treatment of job‑sharing participants, as compared to employees who took a leave of absence, was discriminatory and contrary to s. 15(1) of the Charter. The three RCMP officers argued that the inability to buy back their pension credits amounted to adverse discrimination based on their sex and/or family status, contrary to s. 15(1). Specifically, the claimants alleged that the hours they did not work as a result of job-sharing should have been treated like an unpaid leave of absence for pension purposes, and that they should have been allowed to buy back their unworked hours.
Decisions of the Federal Court & Federal Court of Appeal
The Federal Court and Federal Court of Appeal dismissed the allegations, concluding that the adverse treatment was not sufficiently tied to grounds protected under s. 15. In their view, the adverse treatment the three women experienced was a result of their election to participate in the job-sharing program—a program which necessarily involved working part-time hours. The Federal Court of Appeal noted that, while working mothers face real and significant challenges, “this social reality does not give rise to a constitutional right to increased pension benefits in the absence of discrimination”.
Supreme Court of Canada’s Decision
On behalf of the majority at the SCC, Justice Abella focused on the fact that the overall pension and job-sharing scheme had a disproportionate impact on women because women have historically taken on most childcare obligations. She concluded that the differential treatment of women who participated in the job-sharing program, as compared to those who took an unpaid leave of absence, was contrary to s. 15. Justice Abella declared that the scheme was a breach of the s. 15 rights for “full‑time RCMP members who temporarily reduced their working hours under a job‑sharing agreement, based on the inability of those members to buy back full pension credit.”
Three SCC judges dissented. Justices Brown and Rowe expressed the view that Justice Abella had failed to apply the appropriate test under s. 15, perpetuating an impractical standard of “substantive equality” and potentially discouraging ameliorative programs by requiring them to eliminate historical disadvantage—not just reduce it. In a separate dissenting opinion, Justice Côté simply found that the RCMP pension plan did not single out women. Instead, it created a distinction based on caregiver status, which had not yet been recognized by the SCC as being protected under s. 15 of the Charter as an “analogous ground”.
This case raises fundamental questions about how allegations of discrimination under s. 15 of Charter and human rights legislation will be evaluated in the future. The three most important implications are as follows:
- In determining whether a workplace policy, practice or benefits plan is discriminatory, employers must be careful not to oversimplify the comparative analysis. It is no longer appropriate to simply divide the workplace into two basic sets of “comparator groups”—those who are working and those who are not. For example, in assessing whether a program designed to assist employees with childcare obligations is discriminatory, employers must consider the programs available to employees who temporarily stop working and employees who continue to work in some capacity.
- The fact that a workplace policy, practice or benefits plan has a clear “ameliorative purpose”—a goal of improving conditions for a group that is historically disadvantaged—may not be enough to defend against an allegation of discrimination. Employers must carefully consider the unintended consequences of an affirmative action program, ensuring the distinctions between options and programs available to all protected groups are justified and reasonable in the circumstances.
- We are entering a period of uncertainty with respect to distinctions based on protected grounds under benefits plans, including pension plans, because the broader impact of Fraser is unclear. For example, it is not clear whether employers have to give “buy-back” options to all employees who temporarily reduce their working hours for childcare, or if that would only be required when buy-back options are provided to some members under a pension plan. At a minimum, employers should review part-time / full-time distinctions under their pension and benefits plans to see if they are disproportionately affecting women with childcare obligations according to the analysis provided in Fraser.