Brooks v. Canada Safeway Ltd. (1989), 10 C.H.R.R. D/6183 (S.C.C.) [Eng./Fr. 23 pp.]: Sex Discrimination Includes Pregnancy -- employee disability plan discriminated against pregnant employees
Keywords: SEX DISCRIMINATION -- PREGNANCY -- sick leave benefits denied -- definition of sex discrimination includes pregnancy -- definition of family status includes pregnancy -- BENEFITS -- sick leave benefits denied -- relationship of unemployment insurance to other benefits -- INSURANCE -- purpose of insurance plan
Summary: The Supreme Court, in a unanimous decision, rules that Safeway's employee disability plan discriminated against pregnant employees and that this constitutes discrimination because of sex within the meaning of s. 6(1) of the 1974 Manitoba Human Rights Act.
This is an appeal from a decision of the Manitoba Court of Appeal which found that the Safeway disability plan did not discriminate against pregnant employees and that discrimination because of pregnancy is not discrimination because of sex.
The Safeway disability plan, which was challenged in the complaints of Susan Brooks, Patricia Allen and Patricia Dixon, provided twenty-six weeks of disability benefits to any worker who had worked for Safeway for three months and who had to be absent from work for health reasons. However, the plan denied benefits to pregnant employees during a seventeen-week period commencing ten weeks before the week of childbirth and extending to six weeks after it. During this time, pregnant employees who were unable to work, either because of pregnancy-related complications or non-pregnancy-related illness, were not eligible for benefits. UIC maternity benefits provided an imperfect substitute for the disability benefits because they required a longer work period for eligibility, and provided less money for a shorter time.
The Court finds that pregnancy provides a perfectly legitimate health-related reason for not working and as such it should be compensated under the Safeway plan. Not to compensate pregnant employees for legitimate health-related absences goes against the purpose of human rights legislation which is to remove unfair disadvantages suffered by groups. Though society in general benefits from procreation, the Safeway plan places the major costs of procreation entirely on one group -- pregnant women -- and imposes unfair disadvantages on them.
Having found that the plan discriminated against pregnant employees, the Court considers the second issue in this appeal: whether discrimination because of pregnancy is discrimination because of sex. The Manitoba Court of Appeal relied on the 1979 Supreme Court of Canada decision in Bliss v. Canada (Attorney General) to support its finding that discrimination because of pregnancy is not discrimination because of sex because not all women are or become pregnant.
The Supreme Court repudiates Bliss, stating that Bliss was decided wrongly or in any case would not be decided now as it was then. The reasoning of Bliss and the Manitoba Court of Appeal decision in this case are rejected; the fact that only some women are affected by pregnancy-related discrimination does not mean that it is not discrimination because of sex. Only women are affected by this form of discrimination and they are discriminated against because of their gender.
The Court concludes that Safeway's disability plan discriminated against pregnant employees because of their sex.
The Court sets aside the decision of the Manitoba Court of Appeal with costs of the proceedings before the Manitoba courts and the Supreme Court and remits the complaints to the Board of Adjudication for determination of the appropriate remedy.
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