Supreme Court rules employees entitled to both pregnancy, parental leave
The Supreme Court of Canada, in a rare oral ruling from the bench, recently granted the British Columbia Teachers’ Federation (BCTF) a quick win in its fight for pregnant employees.
The BCTF’s appeal was granted by the Supreme Court on Nov. 14. The decision — regarding discrimination and unequal treatment under the Human Rights Code and the Charter of Rights and Freedoms — upheld an arbitrator’s previous award on the matter.
In February 2011, the BCTF filed a grievance alleging discriminatory treatment of birth mothers by the Board of Education of School District No. 36 in Surrey, B.C., and the British Columbia Public School Employers’ Association (BCPSEA).
According to the union, the employer’s failure to provide supplementary employment benefits during both maternity and
pregnancy leave as well as parental leave was discriminatory conduct contrary to the Human Rights Code and Charter of Rights and Freedoms.
Pursuant to the collective agreement, all parents receive a total of 17 weeks' supplementary employment benefits. Birth fathers and adoptive parents are only eligible to receive the benefits during parental leave. Birth mothers, however, are eligible to receive the benefits during either pregnancy or parental leave, not both.
"The BCTF, on behalf of our members, took the position that birth mothers are entitled to parental leave benefits on an equal basis with other parents," said BCTF president Jim Iker.
"We argued it was discriminatory to deny birth mothers parental leave benefits because the two forms of leave serve different purposes. One is about the physical impacts of pregnancy and birth on women, the other is for all parents to bond with their child. Women have historically suffered disadvantage in the workplace due to pregnancy-related discrimination. Denying parental benefits to a woman because she received pregnancy benefits would perpetuate this disadvantage."
The arbitrator agreed, finding the provision in question constituted discriminatory and unequal treatment. No remedy was awarded, however, because the two parties were engaged in collective bargaining at the time. The arbitrator ruled the parties should determine how best to remedy the provision through the course of negotiations.
The Surrey school board and BCPSEA appealed, arguing the finding of discriminatory treatment was not supported by the language of the collective agreement. The parties asked the B.C. Court of Appeal to set aside the arbitrator’s finding of discrimination and dismiss the grievance. Alternatively, the court was asked to consider an alteration in any potential remedy to ensure cost neutrality.
The B.C. Court of Appeal found in favour of the appellants on Sept. 20, 2013. The appeal was allowed, the arbitration set aside and the grievance dismissed.
The court could find nothing particularly discriminatory occasioned by providing the same supplementary employment benefits to birth mothers, birth fathers and adoptive parents. The fact that identical benefits were provided to all parents, the court ruled, appeared to constitute equal treatment.
In fact, the ruling cited the fact that adoptive parents and, subsequently, birth fathers were brought into the supplementary employment benefits scheme in earlier years because of the union’s efforts to ensure the collective agreement provided equal treatment for all parents.
The BCTF appealed this decision and the Supreme Court of Canada’s quick call reinstated the original ruling of the arbitrator.
"The Court of Appeal erred in failing to give deference to the arbitrator’s interpretation of the collective agreement and in failing to recognize the different purposes of pregnancy benefits and parental benefits," the Supreme Court of Canada’s judgement reads. "The arbitrator was entitled to reach the conclusions that he did and we see no reason to interfere with the remedy."
But because the arbitrator did not make any remedial order — with the expectation the parties would resolve the provision through the course of collective bargaining — the employer is left only with the knowledge there can be no discrimination in the endowment of supplementary employment benefits.
This leaves the parties to the collective agreement to negotiate replacement, non-discriminatory provisions.
"There are various approaches the parties may take… as there is no provincial language in this area and individual school district collective agreements differ," said Deborah Stewart, senior human resources consultant for the BCPSEA. "In this case, the local parties must revisit the language in light of the Supreme Court of Canada decision and re-negotiate. All employers and unions must be mindful of human rights legislation and jurisprudence, which can be challenging as it is ever-evolving."
For the BCTF, the ruling is seen as a significant win for the labour movement and its efforts to protect employees from unfair labour practices.
"It is also an important win for women across the country," Iker said. "At the heart of the issue is discrimination. Employers cannot discriminate against pregnant women and benefit plans for new parents must be consistent with the Charter of Rights and Freedoms. Going forward, we will continue to push for improvements and defend our rights."
