We mentioned earlier this week that action (or the lack there of) following pay equity legislation in Quebec was the focus of two related cases before the Supreme Court of Canada. The first case brief we looked at focused on how the slow development of a tool to adequately identify pay parity in some roles violated womens’ equality rights. While the Court did not strike down the law in the case mentioned earlier, the judgement in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux resulted in three parts of the legislation being struck down for being discriminatory, and therefore unconstitutional.
So what made this pay equity law discriminatory? The original legislation passed in 1996 forced employers with 10 or more employees to give equal pay for work of equal value. In 2009 the law was amended so that employers must review their progress on eliminating the gender wage gap every five years. Wage discrimination uncovered during these audits did not qualify for back pay, which meant that women could face discrimination for five-year periods without compensation.
We mentioned in the May 2018 issue of Canadian HR Reporter that Alberta doesn’t have pay equity legislation, but that doesn’t mean that wage discrimination is permitted in the province’s workplaces. The Alberta Human Rights Commission’s resources on pay equity provide an overview for Alberta employers.
We’ve also mentioned that pay equity will continue to receive a lot of attention. These latest judgements from the Supreme Court of Canada demonstrate that our country’s justice system expects workplaces and governments to rectify gender wage discrimination, and to do so at a pace that makes it a priority. The Court’s Case in Brief below highlights some of the major points from the case and judgement.
Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux
May 10, 2018
For the first time, the Supreme Court has found a pay equity law unconstitutional because it was discriminatory.
In a 6-3 decision, Justice Rosalie Silberman Abella, writing for the majority, dismissed an appeal by the Government of Quebec.
To tackle the problem of wage discrimination against women workers, Quebec passed a law in 1996 forcing employers with 10 or more employees to give equal pay for work of equal value. Ten years later, less than half of employers had complied. Less than two-thirds had even started on a plan. In 2009, Quebec changed the law to require employers to review their progress on pay equity every five years through audits. If the audits showed women were not being paid fairly, they could still only get pay equity every five years, with no back pay for unfair wages in between.
Some unions challenged the new law in court. They said that making pay equity available only every five years was discriminatory. The Quebec courts agreed that the law breached women’s equality rights under section 15 of the Canadian Charter of Rights and Freedoms.
Justice Abella agreed that the law violated women’s equality rights. Pay equity is based on the idea that stereotypes about the role of women in society lead to “women’s work” being valued and paid less than “men’s work.” Pay equity laws require employers to identify jobs done mostly by women, and compare their salaries to the salaries for jobs done mostly by men. Where equal pay is not being given for work of equal value, employers have pay their women employees to close the gap. By restricting pay equity to every five years, the law let employers off the hook. The law continued the disadvantage women already suffered in the workforce. This breach of women’s equality rights was not constitutionally justified. It continued to punish women financially for their employers’ failures. Five judges agreed with Justice Abella.
Justices Suzanne Côté, Russell Brown, and Malcolm Rowe disagreed. They said Quebec’s law did not breach women’s equality rights. They noted that Charter rights are “negative rights,” meaning that governments do not have to adopt particular laws—but if they do, those laws must comply with the Charter. Quebec decided to adopt a pay equity law, and when it saw that the original scheme was not working, it chose to replace it with one that would better achieve equal pay for women. In practice, the changes benefitted women employees and brought them closer to real pay equity. These judges said that the choice of how to improve Quebec’s pay equity laws should be left to Quebeckers’ elected representatives, not the Court. They also noted that back pay was available for unfair wages in between audits.