Pay equity in female-dominated sector requires ongoing comparison with male work: Court of Appeal

Ontario’s highest court has dismissed an appeal brought by a group of nursing homes and the Ontario Government, finding that to achieve gender pay equity, nurses and healthcare workers require an ongoing comparison with male work.

The dispute was between two unions – the Ontario Nurses’ Association (ONA) and the Service Employees International Union – and a group of “participating nursing homes” representing 143 Ontario nursing homes, along with the Attorney General of Ontario.

The issue was how, under the Pay Equity Act, a female-dominated workforce should determine their pay is equitable with men when they have few male co-workers with whom to compare. In such situations the Pay Equity Act provides a proxy method. The female-dominated workplace is compared with a female job class from a similar workplace which has itself been compared with a male job class and thus achieved pay equity.

The ONA and the SEIU argued the proxy method must be continually repeated to maintain pay equity. The participating nursing homes and the Attorney General believed the proxy method should only be used to establish equity, not to maintain it.

“The [Court’s] decision not only confirms that a fundamental precept of pay equity is equal pay for work of equal value with men, but also that it requires ongoing vigilance and comparisons with male work and pay in order to proactively identify and redress systemic gender discrimination in the compensation of women,” says Adrienne Telford, a partner at Cavalluzzo LLP who acted for the SEIU.

“These principles are particularly important in the long-term care sector, where workplaces are almost exclusively female and therefore have no, or insufficient, male comparators in the workplace with which to compare for pay equity purposes.”

In 2016, the ONA and SEIU brought the matter before the Pay Equity Hearings Tribunal, which rejected the unions’ view. The Tribunal provided a formula for pay equity maintenance which did not include the proxy method. But the Divisional Court ruled the Tribunal’s decision unreasonable, finding the Pay Equity Act required an ongoing comparison with male workers. The Court sent the case back to the Tribunal, for it to determine how continued access to male comparators could be achieved.

The participating nursing homes and the Attorney General appealed the Divisional Court decision.

In a decision released Tuesday, the Court of Appeal’s majority – Justices Mary Lou Benotto, David Brown and Benjamin Zarnett – ruled the Tribunal’s decision was unreasonable and that the Act made clear that “ongoing access to male comparators through the proxy method is required to maintain pay equity.” The dissenters, Justices Grant Huscroft and George Strathy, found there was no basis to conclude the Tribunal’s decision was unreasonable and that its expertise entitled it to deference.

“It is an extremely important decision, because this affects women working, not just in the participating nursing homes, but in workplaces throughout the broader public sector across Ontario. This is a ruling that's going to be directly relevant to over 100,000 women working in the most feminized broader public sector workplaces,” says Fay Faraday, a labour and human rights lawyer who acted for the intervenor, the Equal Pay Coalition.

The workers impacted are those who have been widely recognized as heroes during the COVID pandemic but who are also the most subject to sex discrimination in pay and are disproportionately on lower incomes and racialized, she says. 

“In terms of the development of the jurisprudence, it is a significant case because it addresses one of the most hotly contested points in pay equity litigation over many years.”

Also notable, says Telford, was the confirmation by the Court’s majority that the overriding principle or purpose of the Pay Equity Act is not “internal comparison” among women but “redressing systemic discrimination in compensation for work performed by employees in female job classes.” The majority also confirmed that “devaluation of women’s work is systemic” and so will continue even after pay equity is established, she says.

“It is well-established that the labour market has historically been, and continues to be, highly sex segregated, with certain jobs performed predominantly by one gender,” says Telford. “This is particularly true in the health care and social services sectors, where you can have entire workplaces with almost exclusively female workers.”

“It is also well-established that the systemic forces of gender discrimination lead to women being segregated into jobs that are lower paid than men – typically jobs that are closely associated with ‘women’s work.’ These women are particularly vulnerable to pay discrimination.”