This time last year, 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 whether hers was 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 people of different sexes doing the same job might 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 (i.e. airlines, railroads, telecommunications, banking).
The BC Human Rights 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 B.C. Human Rights Tribunal reminds us on its website that “women and men have a right to the same pay for work that is similar or substantially similar.”
Employment and Social Development Canada tells us that “pay equity is a fundamental human right. It is also known as equal pay for work of equal value.”
The Federal Court of Canada decision in PSAC vs. 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.”
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 might not justify a complaint of discrimination, but systemic wage inequality will.
Protection against wage discrimination extends beyond gender. The B.C. Human Rights 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 CSWU Local 1611 vs. 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 for Canada Line construction. 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 the differences in compensation were because the European workers were 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.
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. 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 – money she didn’t need, she admitted – between her earnings and those of her male co-stars reminds us that perceived unfairness is often not about money but principle, in this case one of basic human rights. •
Michael A. Watt is a partner ([email protected]) at Alexander Holburn Beaudin + Lang LLP; Jenson K. Leung is a student at the law firm (www.ahbl.ca).
