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Supreme Court of Canada clarifies the law on adverse effect discrimination

A recent case from the Supreme Court of Canada (SCC), Fraser v. Canada (Attorney General), 2020 SCC 28, addressed issues of adverse effect discrimination and gender equality in the context of a government job-sharing program under a statutory pension plan.

Adverse Effect Discrimination: Good Intentions, Negative Human Rights Impacts

“Adverse effect discrimination” is an important concept in human rights law. It involve situations where a workplace policy, rule or practice that seems to treat everyone equally actually has the opposite effect on a protected group under the Canadian Charter of Rights and Freedoms (Charter) or provincial human rights legislation, such as Ontario’s Human Rights Code (Code).  For example, a work schedule requiring work on Friday evenings for all employees might have a negative effect on employees with religious observations at that same time. This type of unintentional discrimination is also called “constructive” or “indirect” discrimination.  The workplace policy, rule or practice has the effect of unintentionally singling out particular people and results in unequal treatment.

The Fraser Case

In Fraser, the three claimants were retired RCMP officers who took part in a job-sharing program after having children to provide more flexibility for childcare while working part-time. The program participants who were primarily mothers and women anticipated they would be eligible for full pension credits.  However, provisions allowing for the buy back of pension credits that existed for certain service-leaves did not cover credits lost due to job-sharing.

The claimants argued that these loopholes in the job-sharing program violated section 15(1) of the Charter by having a negative impact on women with children on the protected grounds of sex and family status. The applications judge, in Fraser v. Canada (Attorney General), 2017 FC 557, found it was not discriminatory to not provide full-time pension credits to employees working part-time and that the negative consequences the claimants experienced were a result of their personal choice to participate in the job-sharing program. This decision was upheld by the Federal Court of Appeal in Fraser v. Canada (Attorney General), 2018 FCA 223.

The Ruling

In a 6-3 split decision, the majority of the SCC allowed the claimants’ appeal. Writing for the majority, Justice Abella stated the denial of pension credits for those in the job-sharing program disproportionately impacted women, as the participants of the program were predominantly mothers with young children. Women have experienced historical disadvantage in the workplace due to their bearing a disproportionate amount of childcare responsibilities, resulting in them accepting part-time, lower-paid positions and experiencing gaps in their employment history. The negative pension consequences the claimants experienced perpetuated this long-standing source of economic disadvantage to women. This violated section 15(1) of the Charter and could not be justified under section one.

This Case’s Importance

In dismissing the claim on the basis of it simply being a “choice" to participate in the job-sharing program Justice Abella, decided that the lower courts had misinterpreted the SCC’s jurisprudence on section 15(1). Differential treatment can be discriminatory even if based on the choice of the affected individual. The claimants’ decision to work on a part-time basis was not necessarily voluntary. It was a result of economic and practical pressures related to being a working mother, attempting to balance work with childcare obligations. The lower courts also improperly relied on a formalistic, “mirror comparator group” approach to equality that was firmly rejected by the SCC in Withler v. Canada (Attorney General), 2011 SCC 12.

Fraser is an important case about the recognition and remedying of adverse effects discrimination and is a critical development toward the realization of substantive equality in Canada. For more information about adverse effects discrimination see the OHRC's web resource.