SCC strikes down part of Quebec’s pay equity law

By Yves Faguy May 10, 201810 May 2018

SCC strikes down part of Quebec’s pay equity law


The Supreme Court of Canada has confirmed, in a pair of section 15 Charter  decisions, the unconstitutionality of provisions of Quebec’s Pay Equity Act, which was initially passed in 1997 to address systemic wage discrimination against women.

The challenge came from unions representing employees who work in predominantly female job classes. They were arguing that the amendments adopted in 2009 had in effect substantially reduced the rights and benefits of employees.  These amendments imposed pay equity audits every five years, which critics charged was insufficient and served only to allow inequities go uncorrected for too long in the interval between audits.  The province was arguing that denying compensation between audits was a more realistic approach to ensuring compliance by companies. The top court disagreed  (with Justices Côté, Brown and Rowe dissenting):

Although the scheme purports to address systemic discrimination, it in fact codifies the denial to women of benefits routinely enjoyed by men — namely, compensation tied to the value of their work. Men receive this compensation as a matter of course; women, under this scheme, are expected to endure five-year periods of pay inequity, and to receive equal compensation only where their employer voluntarily acts in a non-discriminatory manner, or where they can meet the heavy burden of proving the employer engaged in deliberate or improper conduct. The scheme thus places barriers along the path to equal pay for women. And it correspondingly tolerates undervaluation of women’s work whenever women cannot clear the specific hurdle of proving that they should be paid equally not merely because they are equal, but because their employer acted improperly. Absent such behaviour, working women are told that they must simply live with the reality that they have not been paid fairly, even where a statutorily mandated audit has made that fact clear. In this way, the scheme, by privileging employers, reinforces one of the key drivers of pay inequity: the power imbalance between employers and female workers. By tolerating employer decision-making that results in unfair pay for women, the legislature sends a message condoning that very power imbalance, further perpetuating disadvantage.

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