Supreme Court decision comes with a catch

No good deed goes unpunished. That pithy truth must have echoed in the minds of the RCMP’S senior brass when they read the Supreme Court of Canada’s decision in Fraser v. Canada (Attorney General).

The SCC concluded that a work- sharing program that the RCMP introduced in 1997 discriminated against women and violated the Canadian Charter of Rights and Freedoms. The irony is the program was designed to help women struggling to balance their careers with raising children.

As it turned out, neither the fact the program was voluntary nor that it provided flexible work arrangements saved it.

The three litigants were RCMP members who had taken maternity leave in the mid-1990s. Once back at work, they joined a battle familiar to all working mothers: trying to manage both work and family responsibilities.

The RCMP introduced a program that allowed multiple employees to share one full- time position. This meant parents and other members requiring flexibility could continue working rather than resigning to look after their children and the RCMP could retained its trained officers.

Almost all RCMP employees who ended up joining the program were women raising children.

But the participants soon discovered a catch: they would not be able to buy back pension credit for those years spent in the job- sharing program.

On the one hand, the program was voluntary and gave working mothers the benefit of a flexible work schedule. On the other, a consequence of this program was that the participants ( mostly women with children) could not put those years of work toward their pension.

The majority of the SCC concluded that this was an example of “adverse impact discrimination”: a law or policy that is neutral on its face but has a disproportionately negative impact on a group protected by the charter. This was, the court found, antithetical to the goal of “substantive” equality, and a violation of their charter rights.

Not every member of the court was convinced.

Two of the three dissenting justices pointed out that the continuing disadvantages suffered by the women was the result of social circumstances, not the RCMP program. It was the unfair division of household duties and the social expectations placed on women that led to the loss of the pension, not the RCMP’S program.

In fact, the RCMP had tried to take a step toward equalizing the position of men and women in its workplace by introducing this very program. Just because the program did not entirely eradicate the disparity between men and women did not mean that it was discriminatory.

The two justices went further, offering this biting, criticism of the majority’s reasons: “The gauge of ‘ substantive equality’ has become an open‑ended and undisciplined rhetorical device by which courts may privilege … their own policy preferences.”

In not so many words, the dissent was concerned that the majority’s reasoning could permit activist courts to run amok, justifying or discrediting laws and policies that they disliked, all while hiding under the ill- defined goal of “substantive equality”.

This decision will not directly affect most employment relationships, since the charter only regulates interactions between the government (including government agencies) and individuals. Relationships between private citizens, such as most employment relationships, are guided by human rights legislation, not the charter. However, the principles are the same and human rights tribunals will almost certainly lean on the majority reasoning in interpreting their respective human rights codes.

Employers should know that if they have a policy that on its face is neutral, it could

THEY WOULD NOT BE ABLE TO BUY BACK PENSION CREDIT FOR TIME SPENT IN THE JOB-SHARING PROGRAM.

still be a violation of their employee’s human rights.

For example, if you require all your employees to work on Saturdays, you are potentially violating the rights of an employee whose religion dictates that they take Saturday off. This makes some sense.

What is less intuitive, but what Fraser v. Canada ( AG) appears to warn against, is that employers should also re- examine even those policies created to assist members of a marginalized group. Have they considered all possible consequences of that policy?

Employers should carefully review their policies through this prism. And if they are confused about what precisely “substantive” equality means, they are not alone. If sitting justices of the Supreme Court of Canada can bemoan the lack of clarity that this decision portends, then the humble business owner certainly has her work cut out for her. Got a question about employment law during COVID-19? Write to me at levitt@ levittllp. com. Financial Post Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.