Unintended discrimination
Police forces used to have a minimum height requirement. The stipulation made no mention of sex or gender. But it meant that fewer women could qualify to enter the force than men. So was that rule discriminatory?
Research by two Wadham Law Fellows has been cited at a landmark ruling by the Supreme Court of Canada.
Date Published: 20.10.2020
Research by two Wadham Law Fellows has been cited at a landmark ruling by the Supreme Court of Canada.
Canadian Mounted Police parade by Nic Amaya on Unsplash
In the case of Fraser v. Canada, the Supreme Court ruled that The Royal Canadian Mounted Police pension plan discriminates against women.
Citations were taken from work by Wadham Law Fellows Tarun Khaitan and Sandy Steel in their essay “Wrongs, Group Disadvantage and the Legitimacy of Indirect Discrimination Law”, in Foundations of Indirect Discrimination Law (edited by Tarun Khaitan and Hugh Collins, 2018) as well as from Tarun’s monograph, A Theory of Discrimination Law (2015). Tarun’s introductory chapter with Hugh Collins in the 2018 edited collection was also cited.
Ms Fraser, Ms Pilgrim and Ms Fox were Royal Canadian Mounted Police (RCMP) officers who had children in the 1990s. When they retired, they discovered that their pension scheme disadvantaged them because they had opted for a job-sharing scheme for some time in the late 1990s to cope with their childcare duties. Full-time members could ‘buy back’ pension credit if they were suspended from duty or took unpaid leave but if they job-shared, they weren’t allowed to buy back any pension credit.
Ms Fraser, Ms Fox, and Ms Pilgrim said they should be allowed to buy back the pension credit. They said the pension plan treated job-sharers (who were mostly women with children) worse than other members. Losing their case in the lower courts the women appealed to the Supreme Court where the majority of judges disagreed with the lower courts. They said the pension plan discriminated against the job-sharers because they were women, breaching their right to equality.
This was because it disadvantaged women more than men. It didn’t matter that the plan didn’t set out to hurt women in particular. What mattered was its effect. The majority said the job-sharers should be able to buy back all their pension credit.
Tarun’s 2018 edited collection with Prof Collins was based on papers discussed at a workshop funded in part by Wadham College. “Sandy and I would like to express our gratitude for the support from Wadham which was indispensable to this project”, commented Tarun.
