The Supreme Court of Canada released decisions in two appeals heard in October, 2017, making strong and significant findings that will further the analysis of women’s equality and systemic discrimination. These cases are the first equality challenges under section 15 of the Charter of Rights and Freedoms brought by women, through their unions and women’s organizations, in which laws were found to violate the Charter because of sex discrimination and in which government could not justify the violation.
The Equal Pay Coalition, the Women’s Legal Education and Action Fund(LEAF) and the New Brunswick Coalition for Pay Equity appeared together as the Equality Coalition at the Supreme Court of Canada in both cases: Attorney General of Québec, et al. Attorney General of Québec v. Alliance du personnel professionnel et technique de la santé et des services sociaux, et al. and Centrale des syndicats du Québec, et al. v. The Equality Coalition welcomes the Supreme Court decisions, which represent an important step forward in achieving economic justice for women.
At issue in these cases was women’s access to pay equity in female-dominated workplaces such as childcare centres and language interpretation, as well as women’s right to have pay equity maintained over time. Both cases involved challenges to provisions of the Quebec Pay Equity Act. The Equality Coalition urged the Supreme Court of Canada to apply a robust equality analysis that recognized how systemic discrimination structures women’s work, in order to advance women’s right to pay equity and financial equality.
In its two strongly-worded decisions, the Court made a number of key findings for women’s equality and right to pay equity. The Court recognized pay equity as a fundamental human right and expressly acknowledged the systemic nature of pay discrimination. It noted the unfairness of allowing pay inequity to persist, stating that doing so unfairly makes women “the economy’s ordained shock absorbers.” Further, the Court found that restricting women’s pay equity rights discriminates based on sex. The Court acknowledged that women in female-dominated workplaces experience the greatest wage discrimination.
The Court firmly rejected arguments focused on lowering the bar for employers in order to encourage compliance with pay equity laws. The Court stated: “Reducing employers’ obligations in the hopes of encouraging compliance subordinates the substantive constitutional entitlement of women to be free from discrimination in compensation to the willingness of employers to comply with the law. It sends the policy message to employers that defiance of their legal obligations under the Act will be rewarded with a watering-down of those obligations. And it sends the message to female workers that it is they who must bear the financial burdens of employer reluctance.”
“The Court strongly emphasized that women have been, and continue to be underpaid due to systemic sex discrimination that devalues women’s work socially and economically,” says Fay Faraday, co-counsel for the Equality Coalition. “Canada’s Census shows that women experience systemic pay discrimination across all sectors of the economy. The Court’s decision confirms the important role that specialized proactive pay equity laws play in advancing women’s equality.”
Jan Borowy, co-counsel for the Equality Coalition added that vigilance is required to maintain pay equity, to ensure that discriminatory pay gaps don’t re-emerge over time. “The Court’s emphasis that pay equity ‘is not an episodic right’ and that employers are not entitled to any ‘amnesty’ from paying compensation to redress identified discrimination underscores that pay equity must be maintained and be subject to continued enforcement across Canada,” she said.
Shaun O’Brien, LEAF’s Legal Director states: “These will be important cases going forward. They recognize women’s real situation and experiences in the workplace. The Court has understood that women have been deeply disadvantaged in our economy and has signaled that employers should not be accommodated at the expense of women’s fundamental rights.”
“The Court’s recognition of systemic pay discrimination confirms the plight of millions of workers in female-dominated jobs. Our hope is that these cases will prompt all levels of government to act and put in place adequate protections (e.g. legislation) to ensure pay equity for all,” says Johanne Perron, Executive Director of the New Brunswick Coalition for Pay Equity.
The Equality Coalition is grateful to counsel Fay Faraday of Faraday Law and Jan Borowy of Cavalluzzo LLP for their representation in this case. The Coalition is also grateful to the Ontario Federation of Labour for their financial support.
The Equality Coalition’s factum in Centrale des Syndicats du Québec is found here. The Court decision in that case is found here. The Equality Coalition’s factum in Attorney General of Quebec is found here, with the Court decision in that case found here.
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For Media Inquiries:
Fay Faraday, (416) 389-4399
Jan Borowy, (416) 964-5518
About the Equal Pay Coalition:
The Equal Pay Coalition was formed in 1976 to combat pay discrimination and has been operating continuously since then. It is a coalition of organizations across Ontario that seek equal pay for work of equal value (“pay equity”) both through legislation and collective bargaining. The Coalition has over 41 constituent and partner groups across all sectors, including businesses, professional organizations, labour groups and community organizations, which represent Ontario women and men who support equal pay for work of equal value. The Coalition includes representatives of both unionized and non-unionized workers. The Coalition works in collaboration with many research and policy institutions to advance research and analysis of systemic intersectional sex discrimination in the economy.
About the Women’s Legal Education and Action Fund (LEAF):
Since April 17, 1985, when equality rights were enshrined in sections 15 and 28 of the Charter of Rights and Freedoms, LEAF has used litigation, law reform and public education to work toward equality for women and girls. LEAF intervenes in key cases to ensure that when courts interpret equality rights, there will be a systemic improvement in women’s lives.
For more information about LEAF, visit www.leaf.ca.
About the New Brunswick Coalition for Pay Equity:
The New Brunswick Coalition for Pay Equity is a group of individuals and organizations that educates and advocates for the adoption and the implementation of adequate legislation in order to achieve pay equity for all workers in both the public and private sectors.
For media inquiries directly to the New Brunswick Coalition for Pay Equity, please contact:
Rachel Richard, Public Engagement Officer
Tel / Tél.: (506) 855-0002