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Analysis
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Rights + Justice
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Gender + Sexuality

The Supreme Court Just Made a Stellar Decision on Women’s Equality Rights

You might’ve missed the RCMP pension case, Fraser v Canada. But it will resonate with women across the country.

Paula Ethans 26 Oct 2020 | TheTyee.ca

Paula Ethans is a writer, organizer and human rights lawyer from Winnipeg. You can follow her on Twitter @PaulaEthans.

The Supreme Court of Canada recently held that the RCMP’s pension plan discriminates against women and therefore violates the Charter of Rights and Freedoms.

While this case doesn’t seem particularly interesting on the surface — pension plans don’t often pique interest — it’s a landmark decision in Canadian equality law.

The claimants, three female RCMP employees named Joanne Fraser, Allison Pilgrim and Colleen Fox, argued the RCMP breached their equality rights by denying them the opportunity to get full-time pension credit for the period they reduced their work hours to care for their children.

The three women took maternity leave in the 1990s, but upon returning to full-time work they found it difficult to balance work and caring for their kids. As a solution, they enrolled in the RCMP’s job-share program, which allowed members to split the duties of one full-time position.

The program was a big help to the claimants, but the accompanying pension plan wasn’t fair.

According to the Royal Canadian Mounted Police Superannuation Act, RCMP members can treat certain gaps in full-time service — like going on maternity leave or being put on leave without pay — as fully pensionable. The claimants assumed that job sharing would be eligible for the same credits, but they were later informed that this wasn’t the case.

So while the claimants’ co-workers “bought back” their full-time pension during leaves of absence for educational or even punitive purposes, the women who participated in the job-share program could only get part-time pension credits.

The claimants, in their case Fraser v. Canada, argued the negative pension consequences of job sharing infringe their right to equality because it hurt women in particular.

The Supreme Court held, in a 6-3 decision, that the RCMP pension scheme was “a clear violation of their right to equality under section 15” of the charter, because it disproportionately impacts women and perpetuates their historical disadvantage. The section bars discrimination “based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

Justice Rosalie Abella, writing for the majority, noted nearly all those who participated in the job-sharing program were women, and most limited their work hours due to child-care responsibilities. She also drew attention to pensions being a “long-standing source of disadvantage to women,” because they’ve always been designed “for middle and upper-income full-time employees with long service, typically male.”

“This is a huge win for equality and women in the workplace,” Paul Champ, lawyer for the claimants, told The Tyee. “The Supreme Court of Canada recognized the historical disadvantages women have experienced in the workplace because they have carried an unfair burden for child care in the home.”

The case is particularly important for two reasons. First, it explores “adverse effect discrimination,” and how “neutral” laws can harm certain groups. Second, it unpacks the feminist theory of choice and what it really means to make a decision freely.

The court did an excellent job examining adverse effect discrimination and explaining why it’s so important that we address this issue.

Direct discrimination is when a law is discriminatory on its face, or in other words, when a law is written to exclude or single out certain groups. On the other hand, indirect discrimination is how a law affects or impacts certain groups. This is known as adverse effect discrimination.

When a seemingly neutral law negatively impacts a historically disadvantaged group it amounts to adverse effect discrimination. That’s exactly what happened in Fraser v. Canada. While the RCMP’s pension policy isn’t directly discriminatory — anyone who job shared has negative pension consequences — it’s indirectly discriminatory because it disproportionately impacts women.

The court noted a law that has adverse effects on a historically marginalized group, like women, is enough to prove discrimination; there’s no need to demonstrate an intent to discriminate.

It’s important to combat adverse effect discrimination, Abella wrote, because it allows courts to “go to the heart of the equality question... to an examination of the way institutions and relations must be changed in order to make them available, accessible, meaningful and rewarding for the many diverse groups... ”

Importantly, the court applied a macro lens to the examination of adverse effect discrimination, stressing the need to look at the bigger picture if we are to achieve substantive equality in Canada.

“Substantive equality,” the decision said, “requires attention to the full context of the claimant group’s situation, to the actual impact of the law on that situation, and to the persistent systemic disadvantages that have operated to limit the opportunities available to that group’s members.” The court noted that without recognizing that neutral treatment may frequently produce serious inequality, Canada cannot achieve substantive equality.

Historically disadvantaged groups often endure “a unique constellation of physical, economic and social barriers,” the court said, and laws that distribute benefits or burdens without accounting for these differences can fall prey to adverse effect discrimination.

Joshua Sealy-Harrington, a critical race and gender legal scholar, told The Tyee, “Justice Abella’s majority reasons properly recognize how one simply cannot label a circumstance ‘discriminatory’ without due consideration of the full context, including the circumstances of those alleging discrimination, as well as the effects — not just the intent — of state action.”

The court also unpacked the notion of “choice,” which has been long been oversimplified in Canadian law. The court, citing countless feminist legal scholars on the topic, noted that decisions are not made in a vacuum, and we must acknowledge the contextual and historical aspects that factor into a decision.

The lower courts that heard Fraser v. Canada held that the claimants had “chosen” to job share and thus the consequences were theirs to bear. The Supreme Court rebutted this approach, saying the lower courts had misunderstood section 15, and explained that differential treatment can be discriminatory even if it’s based on choices made by the affected group.

The court admonished the lower courts for invoking choice as the basis for rejecting the equality claim, saying they effectively removed state action from scrutiny and avoided an examination of the equality issues at stake.

Champ appreciates the court’s rejection of past cases that assume unequal results in the workplace are caused by women’s choices. “Saying that discrimination based on pregnancy is acceptable because becoming pregnant is a ‘choice’ is an impoverished understanding of equality. Similarly, saying that women choose to work reduced hours to meet their child-care responsibilities is overlooking the social reality of inequality.”

The court’s rejection of a simplistic notion of choice will likely pave the way for future charter challenges. Claimants may use this case as evidence that courts have a duty to engage in a holistic examination of an individual’s decisions.

There’s no doubt we’ll be celebrating this case for years to come, a bright light closing this year’s Women’s History Month.  [Tyee]

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