Fraser v Canada: Paving the Road Towards Gender Equality
The Supreme Court of Canada (“SCC”) (“The Court”) released their decision regarding the case of Fraser v Canada (Attorney General) 2020 SCC 28 [Fraser] in October 2020, however, the significance of this decision is noteworthy at this particular time in society, as we continue to grapple with discrimination and inequality. Justice Abella, writing for the majority of the SCC, held that legislation negatively impacting RCMP employees, by limiting the availability of workers to obtain full pension credits when choosing to enroll in a job-sharing program, was discriminatory under section 15(1) of the Charter of Rights and Freedoms (“Charter”). The legislation, aimed at supporting workers’ competing responsibilities, was found to predominately impact women with children. This perpetuated discrimination that is still faced by numerous women today who decide to continue to work full-time while supporting a family.
Ruling in favour of the 3 RCMP members who appealed this decision, the SCC made important comments regarding the interpretation of the s. 15(1) Charter right, as well as discrimination as a whole. TheCourt.ca’s post on the Federal Court of Appeal’s decision in this case covers a comprehensive discussion of the background facts. This decision is not only important to women who continue to struggle with pursuing a successful career alongside acting as an exemplary parent. This ruling emphasizes that discrimination is not always direct, or intended, and can come from “neutral laws.” These laws can appear to provide benefits equally. However, in reality these facially neutral laws can actually promote systemic discrimination due to their adverse impact on members of society who become excluded.
Submissions by the RCMP Officers
Ms. Fraser, along with two other women, sought judicial review after they first decided to reduce their hours working as full-time RCMP officers to allow for greater flexibility in caring for their young children. They elected to participate in the job-sharing program that was introduced by the RCMP to assist employees who were finding the full-time hours difficult to endure alongside familial obligations. To obtain full-time pension benefits, RCMP officers were required to engage in 40 hours of work per week (Fraser, para 14). The three women who decided to enroll in the job-sharing program were working rotating 10-hour shifts, 7 days a week and began to experience difficulties once they returned from maternity leave, feeling “overwhelmed” and describing the experience as “hell on earth” (Fraser, para 7).
At the time, the RCMP did not allow regular employees to work part-time. The job-sharing program was initiated to assist as an alternative to taking leave without pay and was intended to be mutually beneficial. The program allowed members, predominantly women, who enrolled to share their full-time hours with two other RCMP officers, however, within a month’s notice they could be requested to return to full-time work. The employer benefited by having trained staff available at all times in case of emergencies or where the workload increased. The officers could retain their “full-time” status through the job-sharing program while also working flexible hours to care for their children. Between 1997 and 2014, there were approximately 140 members in the job-sharing program, and the majority of which were women who stated their reason for joining was due to childcare obligations.
The pension scheme allowed for employees to “buy back” service that was missed by making contributions that the employee and RCMP would have made if they had continued working full-time (Fraser, para 14). The availability of the buy back service was only allowed for employees who took a leave without pay or upon returning from a suspended service. The women who took the job-sharing opportunity expected that they would be eligible for full-time pension credit. Their view was that their reduction in service time would amount to a leave without pay, and when they were working, the officers would be classified as full-time employees (Fraser, para 15). The main distinction between the majority and the dissenting SCC opinions is their differing interpretations of whether officers employed under the job-sharing program would now be classified as part-time employees. If the employees were classified as part-time workers, they would be ineligible to participate in the buy back scheme, however, as the officers argued, if their reduced hours could constitute leave without pay, they would similarly be able to gain full-time pension credits back.
The SCC Decision
At the SCC, Ms. Fraser and her colleagues argued that the limitation they experienced through the RCMP regulations, limiting their buy back options, violated their right to equality protected by s. 15(1) of the Charter on the basis of sex, and alternatively on the basis of family/parental status (Fraser, para 25). The majority and dissent focused their analysis on the basis of sex, considering this case not to be the appropriate time to expand the scope of s. 15(1) to include family/parental status as an analogous ground.
Justice Abella clarified the test to establish a prima facie violation of the s. 15(1) Charter right. The RCMP officers must show at the first stage of the test that the impugned law or state action “imposes differential treatment based on protected grounds, either explicitly or through adverse impact” (Fraser, para 81). At the second stage, the claimant must establish that this distinction has “the effect of reinforcing, perpetuating or exacerbating disadvantage” (Fraser, para 81). Justice Abella clarified that Ms. Fraser was not claiming that the negative pension consequences are explicitly based on sex, but that they have an adverse impact on women with children (Fraser, para 28). This articulation is crucial to the majority’s analysis and finding of discrimination because as the dissenting opinions mention, the law itself is not explicitly discriminatory and appears to apply to all RCMP members equally.
The majority emphasize that, “Increased awareness of adverse impact discrimination has been a central trend in the development of discrimination,” which means that governments have to be “particularly vigilant about the effects of their own policies” (Fraser, para 31). The danger in this type of discrimination is in its ability to go unnoticed because of its appearance as a neutral and equally available law. Justice Abella describes the importance in knowing how to identify adverse effects discrimination as the impugned law may not, on its face, include any distinctions based on prohibited grounds (Fraser, para 50). Two types of evidence were particularly significant in proving this: evidence about the situation of the claimant group, and evidence about the results of the law.
The majority also made further observations that bear importance. The intention of the legislature to create a disparate impact is irrelevant, and after establishing that a particular group has been negatively impacted by the law, the claimant is not then required to prove that the protected characteristic “caused” the disproportionate impact (Fraser, para 69, 70). Claimants also do not need to show that the criteria, and characteristics or other factors used in the impugned law affect all members of a protected group in the same way (Fraser, para 72).
The evidence relied upon to meet the first step of the s. 15(1) test included the fact that RCMP members who worked reduced hours in the job-sharing program were mostly women with children, and for a period of time, 100 percent of the women cited childcare as the reason for doing so. Evidence was also submitted about the disadvantages women face with respect to balancing professional and domestic work. Justice Abella writes, “The RCMP’s use of temporary reduction in working hours as a basis for imposing less favourable pension consequences has an adverse impact on women” (Fraser, para 106). In support of establishing the second step to find a violation of s. 15(1), the majority held that the limitation to buy back service to obtain full-time pension credits acerbates the inequality within pension plans that, as the Court noted, is an “entrenched social phenomenon” in Canada due to the historical dysfunction that persists with women and childcare (Fraser, para 112).
The limitation on equality rights was not found to be justified under the s. 1 analysis due to the failure on behalf of the Attorney General to identify a pressing and substantial policy concern explaining why job-sharers should not be permitted full-time pension credit for their service. The majority highlighted this is especially illogical considering buy back rights are made available to members who have been suspended (Fraser, para 126, 128). Justice Abella decided that the appropriate remedy was to provide a declaration that the regulation disallowing job-sharing RCMP officers to benefit from the buy back options of full pension credit was unconstitutional for breaching s. 15(1) of the Charter. The Court also directed the government to re-develop the facilitation of the buy back program in accordance with the Court’s reasoning in this case. A powerful remedy was bestowed upon the RCMP officers who were disadvantaged by the program: the new functioning legislation allowing buy back options would have retroactive effect for officers to claim the pension credits that they had lost.
Three judges dissented, holding that the Charter violation failed the s. 15(1) Charter analysis. Justices Brown and Rowe parted ways with Justice Côté in their analysis of why it failed to meet the thresholds. Justices Brown and Rowe drew two comparisons: one between the job-sharing members and full-time workers, and another between job-sharers and members on leave without pay (“LWOP”) (Fraser, para 185, 186). Only the comparison to full-time members qualified step 1 of the Charter analysis, as the distinction could be said to be based on sex. Members of the job-sharing program are disproportionately women and those who consistently work full-time hours without interruption was determined to be a “male pattern of employment” (Fraser, para 185). The distinction with members who take LWOP was not held to be based on sex, as the judges found no evidence to suggest that more men than women had opted to take LWOP (Fraser, para 187). Ultimately, Justices Rowe and Brown held that the full-time members distinction failed at step 2 because the difference was not arbitrary or unfair and did not fail to respond to individuals’ actual capacities and needs (Fraser, para 204, 205). Justice Côté found that the disproportionate impact alone on a group would not be sufficient to prove a violation of s. 15(1) as it would “invite statistics-based litigation,” which would also fail to enable the claimants to establish causation (Fraser, para 245). This led to a finding that the comparison failed at step 1 (Fraser, para 245). She also emphasized that this is not an issue based on sex, but instead on caregiving status since the job-sharing program is a solution for all members with caregiving responsibilities, not just women (Fraser, para 244). Justices Brown and Rowe concluded that any disadvantage that is faced by the RCMP officers is not due to the legislation, but the “unequal division of household and family responsibilities and social circumstances such as the availability of quality childcare” that currently exist (Fraser, para 215). The dissenting judges disagreed with Justice Abella’s relaxation of the causation requirement between the impugned law and the alleged disadvantage, stating it is dangerous in lowering the claimant’s evidentiary burden to the point of potential insignificance (Fraser, para 178).
This case is a step in the right direction towards recognizing and upholding an analysis involving substantive equality, which involves looking at a number of factors, not just what lies on the surface of a law or government action. An expansion of an understanding of adverse impact discrimination helps to avoid the serious risk that is presented when neutral laws conceal discrimination. It is quite disappointing that this decision was not unanimous, considering the need for more support provided to women who are negatively affected due to the fact that they wish to embrace a career and support a family. “Gender roles”, or a focus on who is to take on household responsibilities between partners, should no longer be used as an excuse for the inequality that is experienced within many professional industries between men and women.
The fact that the RCMP program allows officers who take an unpaid leave and who are suspended from service, to buy back into the pension credits once they return to work, but not to extend that same benefit to individuals who need to job share out of necessity, is not only illogical, but strictly unfair. At the time the three women’s grievances were internally reviewed by the RCMP, there was an acknowledgment by the RCMP Pension Advisory Committee that the Income Tax Regulations contains flexibility that is “particularly useful in responding to employee requests for reduced work hours at various stages of their family life or career” (Fraser, para 18). The Committee also cited a similar Treasury Board policy already in existence that allowed for an ability to retain full-time pension credits upon transitioning to working less hours before retirement (Fraser, para 19). This establishes that there were no legal or practical limits for not including the buy back option with job sharing.
Discrimination has the effect of making life much more difficult for a particular group of individuals, and I acknowledge that this may be an understatement. The dissenting argument that any harm caused to the claimant was the result of her own choice, debilitates the freedom of women to actually have the support they require to break through traditional gender roles. In reality, a lot of women are single mothers, there is no around-the-clock available childcare, and as it was for RCMP officers, job-sharing is the only solution for individuals with children. The RCMP’s action in stripping away the benefit that it initially created, to provide support for full-time officers, eliminates opportunities and reinforces a glass ceiling. This decision emphasizes the important role that the SCC has in its ability to address systemic discrimination and pave the way towards solving it.