A recent news article has reiterated the troubling statistic that Canadian women earn $0.87 for every dollar earned by their male counterparts performing the same work. (Vancouver Star, 2019 April 4). Gender is probably the first category that comes to mind when the concept of “pay equity” (a.k.a. “equal pay for equal work”) is discussed but other factors could also be grounds for discrimination as regards pay.
Protections against discrimination already exist in Canada and are codified in human rights legislation at both the federal (Canadian Human Rights Act, RSC 1985, c H-6) and provincial levels (Human Rights Code, RSBC 1996, c 210). Still, because ‘anti-wage discrimination’ laws approach pay equity from a different angle than ‘pro-equal pay for equal work’ laws, a wage gap (a difference between the amount one group of people makes for doing the same work as their another) can still exist and some provinces have sought to introduce specific legislation to address this problem.
As of May 2019, BC does not have specific “pay equity” legislation and in instances where there is a complaint regarding (a lack of) pay equity, parties who find themselves in arbitration, mediation or undergoing workplace investigation may be confused as to what legal mechanisms apply. Understanding the current legal framework considered by arbitrators, mediators and workplace investigators in BC helps clear the confusion.
Overview of Applicable Legislation for Pay Equity Issues in BC
A. Human Rights Code, RSBC 1996, c 210 (the “BCHRC”)
British Columbia’s human rights legislation protects against discrimination across a number of categories, including specific protection against pay differentials based on those categories. In other words, the legislation prohibits wage discrimination.
i. Result where there has been wage discrimination
In instances where pay has been unequal between opposite-sex counterparts, section 12(5) of the BCHRC stipulates that the employee who has been paid less is entitled to recover the difference between what they were paid and what the higher-paid person was paid, plus costs (meaning a sum of money that is meant to help off-set fees (such as legal or filing fees) incurred by the person seeking remedy).
ii. Exceptions to Pay Equity rules
However, there are exceptions to the general requirement for pay equity. These include systems of pay that take into account:
per section 12(2), or
- other factors – besides sex – that would normally justify different rates of pay, per section 12(3).
As well, section 42(1) of the BCHRC also provides an exception to pay equity akin to ‘affirmative action’ programs. In order to qualify for this exception, organizations must:
- seek to ameliorate the conditions of people who have traditionally been disadvantaged because of their “race, colour, ancestry, place of origin, physical or mental disability, or sex”; and
- be reasonably likely to achieve that amelioration.
Canadian Human Rights Act, RSC 1985, c H-6 (the “CHRA”)
Very similar protection against pay-based discrimination – and special exemptions from those protections – are contained in the CHRA. In addition to exemptions for systems that take seniority and pension plans into account, the CHRA also provides an exemption for special pregnancy, childbirth or parental leave or benefits. This exemption applies to “employees” in general, and is therefore not limited by the gender of the employee (CED Human Rights IV.2.(b).(iii).A. §185).
Recent Examples of Pay Equity Cases in BC
In addition to mediators, arbitrators and workplace investigators, courts and tribunals have also dealt with disputes related to pay equity.
The case of Reid v. Vancouver Police Board, 2005 BCCA 418 (CanLII) began when a group of civilian, mostly female, police dispatchers filed a BCHRC section 12 wage discrimination complaint asserting a group of mostly male, firefighter fire department dispatchers were an equivalent group employed for the same organization (the City of Vancouver) but were being paid more. Ultimately, the highest court in BC was split 2:1 in determining that the decision of the BC Human Rights Tribunal – which had found that police and fire department dispatchers had different employers (and therefore were not paid unequally by the same employer) was reasonable.
In CSWU, Local 1611 v. SELI Canada et al (No. 8), 2008 BCHRT 436 (CanLII), a group of Latin American workers brought a wage discrimination complaint under the BCHRC. The workers had been involved in the construction of Vancouver’s Canada Line prior to the 2010 Winter Olympic Games and asserted that they were paid less than their European counterparts. After stressing the fact that “context is crucial to any discrimination analysis”, the Tribunal proceeded to apply the evidence to the BCHRC rules to determine; firstly, whether the complainant group had the characteristics asserted to be the basis for discrimination, secondly, whether the complainants were treated adversely, and thirdly, whether the adverse treatment was connected to the characteristics. Having determined the complainant workers satisfied all three points of analysis, a significant award of $2.4 million dollars was awarded to them.
While BC does not currently have employment legislation that requires equal pay for equal work, there are protections against wage discrimination pursuant to human rights legislation. Like other human rights issues, wage discrimination complainants must prove that they are subject to an adverse effect (ie. lower wage) because of their sex, race, or other ground protected by the legislation.
If you have questions about pay equity issues at your workplace, or would simply like more information regarding how these issues are dealt with in arbitration, mediation, and/or workplace investigation, please contact Neil Hain.