Brooks v. Canada Safeway Ltd., [1989] 1 SCR 1219 was a landmark decision about discrimination against pregnant women.
Facts
In the early 1980s, Canada Safeway’s group insurance plan provided compensation to employees who were unable to work due to accident or sickness.
The plan excluded pregnant women for a certain period of time around their due date.
Thus, they could not receive benefits under the plan, even for ailments that were totally unrelated to their pregnancy.
Three part-time cashiers, Susan Brooks, Patricia Allen, and Patricia Dixon became pregnant and were denied benefits under the plan.
They complained, alleging that the plan’s treatment of pregnancy discriminated on the basis of gender, contrary to human rights legislation.
A human rights adjudicator dismissed their claim.
The Manitoba Court of Queen’s Bench and the Court of Appeal upheld that dismissal.
Supreme Court of Canada Decision
They were vindicated when the Supreme Court of Canada decided in their favour. Safeway violated human rights legislation by not providing equal compensation for pregnant women who missed work.
The two main issues were:
- whether the plan discriminated against pregnant employees; and
- whether pregnancy discrimination was discrimination on the basis of gender.
Pregnancy Discrimination
Writing for a unanimous Supreme Court of Canada, then Chief Justice Brian Dickson held that disentitling pregnant women from receiving benefits under the plan was pregnancy discrimination.
Pregnant employees were treated significantly less favourably than any others absent from work. This imposed unfair disadvantages on pregnant women.
Pregnancy is a valid health‑related reason for being absent from work. It should not have been excluded from the plan.
The Court stated at p 1238 that
… everyone in society benefits from procreation. The Safeway plan, however, places one of the major costs of procreation entirely upon one group in society: pregnant women. … this disadvantage can be viewed as a disadvantage suffered by women generally. …a refusal to find the Safeway plan discriminatory would undermine one of the purposes of anti-discrimination legislation…. It would sanction imposing a disproportionate amount of the costs of pregnancy upon women. Removal of such unfair impositions upon women and other groups in society is a key purpose of anti-discrimination legislation. Finding that the Safeway plan is discriminatory furthers this purpose.
Safeway argued that its policy was not discrimination, but rather a decision to compensate some risks and to exclude others.
But the Supreme Court of Canada recognized at p 1240 that that “underinclusion may simply be a backhanded way of permitting discrimination.”
The Court confirmed that discrimination can be found without an intent to discriminate.
It made clear that an employer who provide benefits must disburse them in a non-discriminatory manner.
Gender Discrimination
Safeway argued that pregnancy discrimination was not gender discrimination, because not all women become pregnant.
But the Court disagreed. It held at p. 1248 that the “fact that discrimination is only partial does not convert it into non-discrimination.” “The capacity to become pregnant is unique to the female gender.”
It concluded that:
Discrimination on the basis of pregnancy is a form of sex discrimination because of the basic biological fact that only women have the capacity to become pregnant.
The Court confirmed that placing one of the major costs of procreation entirely upon one group in society, pregnant women, disadvantages women generally:
That those who bear children and benefit society as a whole thereby should not be economically or socially disadvantaged seems to bespeak the obvious. It is only women who bear children … it is unfair to impose all of the costs of pregnancy upon one half of the population. …. Distinctions based on pregnancy can be nothing other than distinctions based on sex…
Pregnancy cannot be separated from gender. So, the fact that the plan did not discriminate against all women, but only against pregnant women, did not make it any less discriminatory.
Importance
Brooks v. Canada Safeway is significant because it recognizes the social value and economic realities of child bearing. This is essential if women are to have equal opportunities in the workplace.
It reinforces that attitudes and practices that disadvantage women, including those who may not have children, have no place in Canadian workplaces.
This decision has been relied on by courts in numerous decisions that have led to justice for many who have experienced discrimination.
This publication is intended for general information purposes only and should not be relied upon as legal advice.
