Equal Pay a Human Right

Braha, W Anita

EQUAL PAY HAS LARGELY ELUDED women in Canada, but not because there are no laws requiring men and women to be paid the same. There are lots of laws related to equal pay. However, there’s not much point to laws if they’re not obeyed, or if it takes 20 years before they’re enforced.

Women in Canada have waged a long and frustrating struggle to get equal pay. After decades of lobbying, the first equal pay legislation in Canada was passed in 1956 to prohibit wage discrimination. It required employers to pay men and women who performed identical or substantially identical work to be paid equally: what’s known as equal pay for equal work. All jurisdictions in Canada have human rights codes that require this of employers. Some jurisdictions in Canada go further and require employers to pay men and women who perform equivalent work the same wages. This is known as equal pay for work of equal value. The Canadian Human Rights Act, for example, has such a provision.

However, despite these laws, the wretched wage gap persists. Even when equal pay complaints have been filed with human rights commissions to achieve what the mere enactment of laws was unable to achieve, there have been mixed results. And win or lose, equal pay cases often take between 15 and 20 years to work their way through the legal system.

Let me give some examples of the webs employers weave to avoid paying women fairly.

In November 1991, the Canadian Union of Public Employees filed a human rights complaint on behalf of flight attendants, a predominantly female group, who were being paid less than the mechanics and pilots, a predominantly male group, at what was then Canadian Airlines (now Air Canada).

As an employer covered by the federal human rights act, Air Canada was not supposed to be paying women less than men if they were performing work of equivalent value in the same “establishment” as the men. The airline’s response to the union’s complaint was to argue that the flight attendants, mechanics and pilots – suddenly and miraculously – each worked for separate establishments.

To avoid being held responsible, they were trying to tell us that the people who served the customers worked somewhere else than the pilots who flew the plane. And apparently the mechanics who had just serviced and refueled the same plane worked at yet another “establishment.” Ultimately, the case wound its way to the Supreme Court of Canada which rejected the employer’s argument.

Beginning in 1990, emergency dispatchers at the Vancouver police department, a predominantly female group, filed 100 human rights complaints seeking equal pay with the male emergency dispatchers at the Vancouver fire department. (The emergency dispatchers are the people who receive 911 emergency calls and dispatch the appropriate units.) While the work done by the police and fire dispatchers is the same, their pay was significantly different: between $22,000 and $33,000 per year, each.

The City of Vancouver’s response was to say that it was not the police emergency dispatchers’ employer, despite the fact that the City advertised dispatcher jobs, screened and tested new applicants, administered benefits and paid the dispatchers. On any interpretation, the City was their employer.

Interestingly, the City didn’t deny it did these rather suspiciously employerlike things. Rather, its lawyers argued that performing these functions do not an employer make. Unbelievably, the B.C. human rights tribunal agreed with them. On judicial review the B.C. Supreme Court overturned the tribunal’s decision on the employer issue. The B.C. Court of Appeal reinstated it. Earlier this year, the Supreme Court of Canada denied the complainants the right to appeal the decision.

Unfortunately, legal strategies like these that rely on challenging the employment relationship between complainants and their employers have very effectively thwarted women’s attempts to secure equal pay, despite their right to it. What was supposed to be a simple matter of applying the legal principle of equal pay has become, over the years, a staging ground for resistance, obfuscation, and a distortion of reality.

The Supreme Court of Canada’s decisions don’t seem consistent. On the one hand, in the Air Canada case, the Court put an end to the legal machinations that attempted to deny an employment relationship between an employer and complainants. On the other hand, the Vancouver police dispatchers were denied the ability to present their arguments to the Court. The Air Canada case preceded the Vancouver case. An optimist would say that the Court feels they have already dealt with the issue of employers’ attempts to hide their true role with their female employees.

What will it take for women in Canada to actually receive equal pay? More decades of lobbying and litigation? Surely the recognition of equal pay, and the application of this legal principle, do not merit this kind of response from employers. Why don’t we try simple adherence to human rights?

At presstime, the Communications, Energy and Paperworkers Union of Canada reached a tentative settlement with Bell Canada in their 14-year-old dispute over pay equity on behalf of 4,765 telephone operators (see p.6, Notes, or www.cep.ca).

W. Anita Braha, a Vancouver-based lawyer who specializes in human rights, was counsel for the emergency dispatchers in Vancouver. She is also an instructor at Capilano College, and a research associate with the B.C. office of the Canadian Centre for Policy Alternatives (www.policyalternatives.ca).

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