Women’s Right to Equal Pay Falters

Women’s right to be free from sex discrimination in pay continues to falter. The Saskatchewan Human Rights Tribunal decided in Boychuk v. Saskatchewan (Social Services) (No. 2)  (CHRR Doc. 09-2967) that s. 16 of the Saskatchewan Code, which prohibits sex discrimination in the terms and conditions of  employment, does not guarantee that women and men will be paid the same when they perform work of equal value. The ruling seems to turn on the fact that the Human Rights Commission has been given neither the resources nor the regulatory framework to effectively implement a pay equity regime. If that is the case, the Government of Saskatchewan has a clear responsibility, under international human rights law, to legislate to fill the void.

For thirty years, Canada has been a signatory to international human rights treaties that commit Canada to ensuring that women receive equal pay for work of equal value. Nonetheless, there are still not laws in place in every jurisdiction to implement that right. Only in Ontario, Quebec, and the federal sector are there pay equity laws applying to both public and private sector employers. In Manitoba, New Brunswick, Nova Scotia and Prince Edward Island, there are pay equity laws that apply to some public sector employers. In B.C., Alberta, Newfoundland, Nunavut and Saskatchewan, there are no pay equity laws.

In 2003, when the United NationsCommittee on the Elimination of Discrimination against Women reviewed Canada’s human rights performance, it urged Canada to fully implement women’s right to equal pay for work of equal value in all jurisdictions. But governments have not responded.

At the federal level, Prime Minister Stephen Harper has refused to implement the recommendations of the 2004 Pay Equity Task Force, which was appointed to design much-needed changes to the federal pay equity system. In addition, in the 2009 Budget, he introduced the Public Sector Equitable Compensation Act, which, in effect, takes away the right of women federal public servants to equal pay for work of equal value. The legislation authorizes the federal government to assess its own pay practices by taking into account, among other things, the market value of particular skills. Since the point of pay equity schemes is to correct for structural discrimination in the market, the Conservatives have emptied pay equity of meaning. 

Nor have courts and tribunals been a lot of help. For example, in 2004, the Supreme Court of Canada sacrificed women’s right to equal pay to an unexamined government claim of “fiscal crisis” in NAPE v. Newfoundland (2004 SCC 66). And in 2009, the Canadian Human Rights Tribunal in Walden (CHRR Doc. 09-0927) refused to provide a remedy to 431 women public servants who had been discriminated against in pay since 1978, because it found it difficult to calculate the amount of the wage loss. In both cases, the fundamental right of women to be treated equally with respect to pay was given short shrift.

Canada has a weak record on equal pay for women, with the 5th highest gender wage gap among 22 OECD countries. Neither governments nor legal institutions have acted effectively, and with conviction, to implement this right.

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