The Canada Post pay equity case, which began when I was in grade 10 (!) back in Mississauga listening to Spandau Ballet (I couldn’t resist), ended yesterday in dramatic fashion with Chief Justice MacLachlin issuing a rare verbal ruling 20 minutes after the legal argument, restoring the original decision of the Tribunal. That Tribunal ruled that Canada Post had discriminated against the predominantly female clerical workers by paying them less than predominantly male job classes performing comparable work.
The Supreme Court of Canada’s Oral Ruling
You can watch Chief Justice McLachlin’s 20 second oral decision on behalf of the Supreme Court of Canada here.
Here is the Toronto Star summary.
Here is the CBC story and video of the union’s representative on Power and Politics.
The case was brought under Section 11 of the Canada Human Rights Act, which says this:
11. (1) It is a discriminatory practice for an employer to establish or maintain differences in wages between male and female employees employed in the same establishment who are performing work of equal value.
Assessment of value of work
(2) In assessing the value of work performed by employees employed in the same establishment, the criterion to be applied is the composite of the skill, effort and responsibility required in the performance of the work and the conditions under which the work is performed.
(3) Separate establishments established or maintained by an employer solely or principally for the purpose of establishing or maintaining differences in wages between male and female employees shall be deemed for the purposes of this section to be the same establishment.
Different wages based on prescribed reasonable factors
(4) Notwithstanding subsection (1), it is not a discriminatory practice to pay to male and female employees different wages if the difference is based on a factor prescribed by guidelines, issued by the Canadian Human Rights Commission pursuant to subsection 27(2), to be a reasonable factor that justifies the difference.
(5) For greater certainty, sex does not constitute a reasonable factor justifying a difference in wages.
No reduction of wages
(6) An employer shall not reduce wages in order to eliminate a discriminatory practice described in this section.
Definition of “wages”
(7) For the purposes of this section, “wages” means any form of remuneration payable for work performed by an individual and includes
(a) salaries, commissions, vacation pay, dismissal wages and bonuses;
(b) reasonable value for board, rent, housing and lodging;
(c) payments in kind;
(d) employer contributions to pension funds or plans, long-term disability plans and all forms of health insurance plans; and
(e) any other advantage received directly or indirectly from the individual’s employer.
While the concept of “equal pay for work of equal value” sounds straightforward enough, it is quite complicated in practice to calculate whether two jobs are of “equal value”. This case involved about 50 expert witnesses, and over 400 days of hearing! Lots of lawyers have put their children through university on this case.
The Human Rights Commission’s Factum is here.
Canada Post’s Factum is here.
You can watch the legal arguments presented in the Supreme Court hearing yesterday here.
Canada Post will have to pay approximately $250 million to satisfy the ruling. That money will go to both men and women who were in the underpaid job classification.
Questions for Consideration
What do you think this case tells us about the success (or lack thereof) of equal pay legislation?
Women in Canada still earn only about 70 cents on the dollar compared to men. Does this mean that equal pay legislation such as that involved in the Canada Post case is futile?
Or does the victory, thirty years after the complaint was filed, demonstrate the futility of equal pay laws as a tool for addressing the gender pay gap?