No ‘adorable’ way to discuss wage discrimination

This time last year the Hollywood actress Jennifer Lawrence spoke out about making less than her male co-stars after the Sony hack revealed payroll figures on the internet. She questioned whether she had failed as a negotiator when her male counterparts had succeeded, or was hers a case of gender discrimination. She resolved that she was over trying to find an “adorable” way to state her opinion.

J-Law’s comments reminded us that wage disparity between persons of different sexes doing the same job may be wrong and unfair in modern society regardless of the explanation. In British Columbia and across Canada wage discrimination has been made illegal where it is based in whole or in part on a person’s gender (or other enumerated grounds). Below we have discussed the legal protections in place and related decisions.

Legal protection exists both under provincial law (which applies to most employers), as well as the laws applying to those few businesses governed by legislation made in Ottawa (ie. airlines, railroads, telecommunications, banking etc.). The BC Human Rights Code (Code) and the Canadian Human Rights Act (CHRA) make it illegal for employers to pay male and female employees different rates for the same work. The BC Human Rights Tribunal reminds us on its website that , “[w]omen and men have a right to the same pay for work that is similar or substantially similar.”.  From Ottawa, Employment and Social Development Canada tells us that “[p]ay equity is a fundamental human right.  It is also known as equal pay for work of equal value.”.

The decision of the Federal Court of Canada in the case of P.S.A.C. v. Canada (Treasury Board) involved a review of a finding that the Treasury Board had discriminated against its female employees by paying the predominantly female clerical and regulatory (CR) occupations less than the predominantly male group of Program Administrators. The complaint also alleged that the CR members were subjected to a discriminatory classification standard.  The Tribunal held that discrimination had occurred. The Court dismissed the application for review and reminded us that the law was enacted to “eradicate systemic wage discrimination resulting from the gendered segregation of work and the under-valuation of the work typically performed by women.”.

Canada’s highest court has held that the principle of wage equality applies to situations where workers hold different positions but perform essentially equally valuable work. The decision of the Supreme Court of Canada in C.U.P.E. v. Canadian Airlines involved a complaint by female flight attendants that they were discriminated against in comparison to mechanics and pilots, who were predominately men.

The law does recognize that employers are justified in paying workers different rates for reasons such as differences in qualifications, seniority and responsibilities. The determination required to be made in cases alleging discrimination is whether the difference in wages is in any way related to gender.  In J-Law speak, being a poor negotiator may not justify a complaint of discrimination, but systemic wage inequality will.

Protection against wage discrimination extends beyond gender. The Code and CHRA prohibit employers from paying workers differently based on discriminatory grounds, including place of origin, disability or age.

The BC Human Rights Tribunal decision in the case of C.S.W.U. Local 1611 v. SELI Canada and others, found that paying a group of workers less based on their country of origin was discriminatory. In that case, SELI hired Latin American and European temporary foreign workers to work on the construction of the Canada Line. Despite being employed in similar roles, the Latin American workers were given lower wages and inferior housing and meal arrangements relative to the European workers. SELI claimed that the differences in compensation were because of the European workers being more skilled and experienced. The Tribunal rejected SELI’s arguments in finding discrimination in wages and ordered the employer to pay the Latin American workers $10,000 each for injury to dignity, in addition to the differences in compensation.

The principle that employees may not be paid less on the basis of a protected ground under human rights legislation was also the subject of the decision of the Ontario Human Rights Tribunal in the case of Garrie v. Janus Joan Inc. In that case the employer was found to have illegally paid employees with developmental disabilities working as general labourers less than other employees performing the same role. The adjudicator found this to be discriminatory, and noted the “objective seriousness of [employers] paying workers less because of their […] personal characteristics [disability].”.

While modern society has sought to make unjustified discriminatory wage rates a thing of the past, the examples discussed remind us that inequity continues to exist. The legislation covers all workers whether governed by provincial, territorial or federal laws and provides an avenue for employees (or others on their behalf) to pursue claims of discrimination. Employers must be aware of these requirements to ensure that pay structures are fair and defensible, and that illegal considerations have not played a role in determining individual wage rates in order to avoid costly disputes. The example of J-Law identifying differences of millions of dollars between the earnings of her and her male co-stars that she admits to not needing reminds us that perceived unfairness is often not about money but principle, in this case one of basic human rights.

An abbreviated version of this article was originally published in Business in Vancouver on October 25, 2016.

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