Legislation and Policies

Pay Equity Task Force

Submission of the
Canadian Human Rights Commission
to the
Pay Equity Task Force

 March 2003

Introduction
Scope of this Submission
Pay Equity is a Human Right
Human Rights are Universal and Indivisible
Human Rights are about Equality
The Importance of a Unified Human Rights Institution
Lessons Learned from Employment Equity
Updating the Approach to Pay Equity
Achieving Effectiveness and Efficiency

Introduction

It is widely accepted that discrimination is one factor that leads to economic disadvantage for women, and that the gender wage gap is one indicator of inequality for women in Canada. The linkage appears clear: effective and efficient pay equity policy can contribute to equality for women and others. However, although federal pay equity provisions have been in place since 1977, the achievement of pay equity has been uneven. It is difficult to know to what extent pay equity has contributed to better pay for women, or in what industries or sectors. Moreover, little, if anything is known about whether pay equity has been maintained even in those federally regulated workplaces in which it has been achieved.

Designing and implementing more effective and efficient pay equity policy is challenging for a number of reasons. Pay equity can be an area of great complexity and controversy with markers of effectiveness and efficiency obscured by what seem like technical details. In particular, it is important to consider what institutional arrangements and structures should be established by Government in order to best support the achievement of pay equity as a human right throughout federal jurisdiction. A fundamental question is what kinds of institutional structures and arrangements are more likely to support achieving pay equity in the consistent, integrated and proactive fashion that is required by Canada’s international human rights obligations.

Scope of this Submission

At this stage in its deliberations, the Pay Equity Task Force has commissioned research and received submissions reflecting a range of different perspectives. There seems to be significant agreement that pay equity is a human right. There has been little discussion, however, of what that means in terms of the institutional arrangements and structures of government with responsibility for pay equity. In this submission, the Canadian Human Rights Commission would like to address two key questions that relate to that issue:

• What does it mean to say that pay equity is a human right?
    
• What institutional arrangements and structures operate effectively and efficiently to promote and protect human rights, including the right to equal pay for work of equal value?

Pay Equity is a Human Right 

The starting point is the principle that pay equity is a human right. In fact, it is one of the earliest human rights recognized as an international standard.¹ As has been noted already in submissions to the Task Force, the right to pay equity or equal pay for work of equal value is enshrined in many international human rights agreements to which Canada has been bound for decades.² Other submissions have also stated that human rights are quasi-constitutional and enjoy paramountcy over other kinds of rights, and that they must be interpreted liberally and progressively.

But human rights, including pay equity, are more than this. Human rights are universal and indivisible.³ Human rights, including the right to pay equity, must be the same everywhere and for everyone. Inextricably linked to equality, human rights are also intended to be transformative. While pay equity aims to fairly value and compensate the work done primarily by women, pay equity is not "just about the money". Pay equity identifies and dismantles long-standing patterns of systemic discrimination in order to change how we do business and how society operates. In order to effectively and efficiently support the goal of non-discrimination, including equitable compensation, the design of government institutions and programs with responsibility for pay equity must be able to respond to these unique characteristics. The proactive approach to employment equity is an example of how, since 1996, the design of federal human rights machinery has done so.

Human Rights are Universal and Indivisible

The universality and indivisibility of human rights is well-recognized and fundamental. In practical terms it means that pay equity is a right - the same right - for all workers regardless of whether they are unionized or nonunionized; whether they work for a small employer or for the federal government. It also means that the right to pay equity cannot be separated from the right to be free from other kinds of discrimination. Human rights are mutually reinforcing, and their interdependence calls for the consideration, promotion and protection of all rights simultaneously.⁴

What does the principle of universality and indivisibility mean for the design of institutional arrangements and programs with responsibility for pay equity? In practical terms it means that there must be a clear mandate and capacity to ensure that the right to pay equity is available to all, along with other human rights. Institutional structures or programs that hive off a particular human right or treat it in isolation weaken the web of universal protection that Canada has agreed to ensure. Fragmentation of human rights and approaches to human rights results when different agencies are mandated to deal with different groups of stakeholders, or the status of a worker determines the recourse available to them, or different agencies deal with different rights. These types of arrangements have the potential to set up a tiered approach to human rights by differentiating, for example, between unionized and nonunionized workers, or those who work for the public and private sectors. Not only does such a result pose the risk of falling short of Canada’s goal of achieving equality, it also fails to respond to the interconnected nature of human rights leading to uneven outcomes. Effectiveness and efficiency in the promotion and protection of human rights is undermined.

Human Rights are about Equality

Equality is at the core of human rights. The purpose of the Canadian Human Rights Act, including the prohibition against wage discrimination in section 11, is to promote equality.⁵ Wage discrimination is a form of systemic inequality that generates multiple harms, including economic disadvantage, damage to self-worth, respect, dignity, and a diminished capacity to participate fully in society. Current concepts of equality recognize that wage discrimination does not occur in isolation, but is linked to systemic practices and policies that hinder or restrict a range of employment opportunities. While wage discrimination in and of itself can lead to a constricted ability for some to fully enjoy a range of human rights, it is the insidious link between wage discrimination and other forms of discrimination that can adversely impact the most disadvantaged workers. Unequal pay is part of the broader problem of systemic discrimination in employment, and pay equity is one essential tool for creating systemic change.

Gender equality is an important strand of equality. And it has been central to our understanding of the need for pay equity for the past twenty-five years or more. But people experience wage discrimination on grounds other than and in addition to gender. Reforming pay equity policy with a view to the next twenty-five years or more should hold the promise of an institutional framework that can address one or more or the combined effect of multiple grounds of wage discrimination. A modernized institutional framework must also be able to respond to the range of discriminatory practices that can be enmeshed with wage discrimination.

The ultimate goal of both international and Canadian human rights laws is to change - to transform - society so that it is more inclusive of women and others who experience disadvantage and marginalization. An institutional framework that cannot respond to overlapping forms of discrimination and multiple grounds of discrimination does a disservice to the transformative potential of human rights and equality. The evolution in human rights understanding over the past twenty-five years has led to a recognition that different forms of inequality, including wage inequality, do not exist in separate compartments. The Supreme Court of Canada recognizes that people experience discrimination in complex and multi-faceted ways.⁶ This reality is why the Canadian Human Rights Act was amended to expressly prohibit discrimination on multiple or combined grounds of discrimination.⁷

In order to keep step with our evolving concept of equality, the design of institutional arrangements and structures must also be updated accordingly. Institutional arrangements that are intended to promote and protect human rights, including pay equity, must be able to respond to the reality of discrimination in people’s lives. Fragmented institutional arrangements with incomplete mandates can not. The role of Government in protecting and promoting pay equity as one of a bundle of interconnected human rights for everyone is essential. A disjointed approach to the protection and promotion of human rights will do a disservice not only to those who are disadvantaged by discrimination, but also to the many federally regulated employers, unions and employees who are attempting to achieve equality in their workplaces.

The Importance of a Unified Human Rights Institution

Human rights treaty bodies have stated that national human rights institutions such as the Canadian Human Rights Commission have a crucial role to play in promoting and ensuring the indivisibility and interdependence of all human rights.⁸ Since the 1980s, international human rights agreements have become increasingly explicit about the indivisibility of human rights, and about how the reality of this interconnectedness must inform strategies for securing human rights. The Vienna Declaration and Programme of Action⁹ which was adopted by the United Nations in 1993 on the occasion of the 50^th anniversary of the Universal Declaration of Rights, refers expressly to the "important and constructive role" of national human rights institutions in the promotion and protection of human rights. Canada has also signed recent international agreements that recognize the need for comprehensive equality action plans coupled with transparent and accountable institutions of government in order to move the equality agenda forward.¹⁰

An integrated approach to human rights is consistent with the integration of governmental structures responsible for anti-discrimination and equality.¹¹ Effectiveness and efficiency result when the indivisibility and interconnectedness of human rights is embedded in the institutional framework with responsibility for those rights. Such an approach was taken in 1995 when responsibility for the enforcement of a re-invigorated federal employment equity policy was given to the Canadian Human Rights Commission.¹² With this responsibility came new tools, namely, compliance audits. Audits have led to considerable progress in fulfilling the purpose of the Employment Equity Act.¹³ This result demonstrates not only the strength of an integrated approach to equality based on mandatory compliance, but also the need to update the tools that the Canadian Human Rights Commission has at its disposal to establish standards and best practices, monitor implementation and promote compliance with pay equity and other human rights.

Lessons Learned from Employment Equity

As was noted in A Time for Action, our Special Report to Parliament¹⁴, the complaints-based system is ill-suited to broadly based inquiries into systemic discrimination, including systemic wage discrimination. Complaints are also a poor tool for stimulating the long-term, multi-faceted change that is needed to create more equitable work environments, including fair compensation systems. A more proactive approach to achieving equality is needed. The kinds of positive obligations that are imposed under the Employment Equity Act have worked well and, with appropriate funding, the audit machinery will continue to promote meaningful compliance. At the same time, individual complaints regarding the application of a particular policy can be addressed through the anti-discrimination (complaints) stream. The equality-based proactive approach of employment equity and the anti-discrimination focus of the complaints-based system have been successfully combined within a single federal human rights institution.

This success has been enhanced by the necessity to ensure a coherent and consistent approach across the Canadian Human Rights Commission when dealing with anti-harassment, accommodation and other kinds of policies. These kinds of policies are at issue both in removing barriers to equality through employment equity, as well as investigating allegations of discrimination resulting from the application of such policies. Coherency and consistency have been facilitated by the fact that although the Employment Equity and Anti-Discrimination branches operate separately, both have remained part of the broader Commission structure. This institutional arrangement supports and reflects an integrated approach to human rights and equality across the federal jurisdiction, and leads to more predictable outcomes for employers, unions and workers.

The integration of employment equity into the broader mandate of the Canadian Human Rights Commission also demonstrates the advantages of locating a specialized group within a larger agency. This institutional framework generates a cross-fertilization of knowledge and skills that can take place laterally, while functional units remain distinct. Core competencies, common skill sets and expertise can nourish all aspects of the agency’s work. At the same time such a framework inhibits the formation of "silos of expertise" which may lead to uneven outcomes, lack of effectiveness and inefficiencies.

Updating the Approach to Pay Equity

An integrated and pro-active approach to pay equity offers similar potential. The current framework of the Canadian Human Rights Act does not comprehensively or proactively address the complexities of wage discrimination. This has become clearer as our understanding of wage discrimination has become more sophisticated. For example, the legislation does not encourage an examination of the multiple and overlapping levels at which wage discrimination operates. These include not only rates of pay (as contemplated by section 11), but compensation structures and practices. Legislative changes, supported by a clear mandate, are needed to support the work that is required to create systemic and lasting change in compensation structures and practices.

Equitable wages are a fundamental aspect of equality, but they are not sufficient to redress the inequality suffered by women and other disadvantaged groups in employment. A coordinated and concerted strategy is needed to transform the systems and practices that continue to exist. Only part of this transformation can be achieved through employment equity and anti-discrimination initiatives. A specialized, human rights-based and proactive approach to pay equity is also needed. Where pay equity is achieved, it can add to a synergy that sparks changes not only in pay, but in systemic attitudes and practices towards women and others. This flow-through effect results from the interconnectedness of human rights. An institutional framework that deals with wage discrimination in isolation from human rights machinery is ill-equipped to foster this kind of transformation.

The transformative potential of pay equity as a human right has also been abridged by the complaint-based system. Complaints have focused on redressing discrimination through retroactive wage awards, and this has led in some instances to resistance, delay and lengthy litigation. While settlements and court cases have resulted in sizeable awards for some workers, it is less clear that the underlying structures giving rise to wage discrimination have been addressed. With complaints as the driver, institutional resources are necessarily skewed in favour of investigation and complaint resolution. At the same time, an ambiguous statutory mandate for systemic change has curtailed the development and implementation of more systemic approaches.

Achieving Effectiveness and Efficiency

A principled approach to the protection and promotion of human rights, including pay equity, can lead to effectiveness and efficiency in the institutional framework with responsibility for human rights and equality. The efficiencies that could result from a unified institutional structure are many. For example, a single federal human rights and equality body such as the Canadian Human Rights Commission would offer a common point of contact for all of those working towards equality in the federal jurisdiction. This would streamline how employers, unions, employees and others interact with Government.

It could also form an easily identifiable and consistent presence for equality-seekers, including those who are experiencing discrimination in the workplace or the provision of services. Given that these workers tend to be susceptible to many different forms of discrimination and experience discrimination on multiple grounds, their access to equality is improved if administrative frameworks are simplified rather than multiplied. A unified structure would also allow smaller employers and non-governmental organizations, many of whom have scarce resources, to focus their efforts and energies while minimizing duplication. Furthermore, by piggy-backing administrative and management resources, a unified federal human rights and equality body could streamline and consolidate the use of public resources, avoiding overlap and maximizing returns. From a machinery of government perspective, very high transition costs would be associated with establishing a separate institutional structure for pay equity.

In terms of enhancing human rights on a national scale, it is important to have a single federal equality body to develop complementary relationships with territorial and provincial bodies with responsibility for human rights. Federalism requires governments to work together, and the capacity to coordinate at the national level enhances the ability to do so. Effective liaison on a national scale ensures that equality, including freedom from wage discrimination, is ensured federally, provincially and territorially, while taking into account regional priorities and considerations.

In the same way, a unified federal human rights and equality body would have the capacity to encourage sectoral approaches within federally regulated undertakings on a transnational basis. This could be particularly effective given that the federally regulated working population is concentrated within a few industrial sectors. This institutional capacity, supported by a clear mandate, could ensure that federally regulated workers enjoy more consistent access to equality, regardless of the industry within which they work. Developing a results-based approach to non-discrimination and equality that makes sense in a particular industrial sector is something that requires integration at the federal level. A fragmented institutional structure that divides responsibility for the promotion and protection of human rights, including pay equity, is disadvantaged in delivering such an outcome.

Endnotes

1. The principle of equal pay for work of equal value has been recognized as a fundamental human right and fundamental labour right since 1919. Equal pay for work of equal value was one of the nine founding principles of the International Labour Organization and has been enshrined in the preamble to the ILO Constitution since 1919.

2. The right to equal pay for work of equal value was enshrined in the International Labour Organization’s Convention No. 100 (Convention on Equal Remuneration for Work of Equal Value) in 1951. Canada ratified Convention No. 100 in 1972 and enacted the pay equity provisions in section 11 of the Canadian Human Rights Act in 1977 in order to meet Canada’s obligations under the Convention. The right to equal pay for work of equal value is also enshrined in the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (both adopted by the UN in 1966 and ratified by Canada in 1976); the Convention on the Elimination of All Forms of Discrimination Against Women (adopted by the UN in 1979, ratified by Canada in 1981) and the Beijing Declaration and Platform for Action (adopted by the UN in 1995 and signed by Canada in the same year).

3. Universal Declaration of Human Rights, G.A. Res. 217 (III), UN GAOR, 3d Sess., Suppl. No. 13, U.N. Doc. A/810 at 71 (1948), Article 2; International Covenant on Economic, Social and Cultural Rights (16 December 1966), U.N.T.S. 3, Article 3; International Covenant on Civil and Political Rights, (16 December 1996), 999 U.N.T.S. 171, Article 2(1), Article 3.

4. Women’s Rights are Human Rights. Available online at: http://193.194.138.190/html/menu2/womenpub2000.htm.

5. Canada(Attorney General) v. Mossop [1993] 1 S.C.R. 554, at para. 97.

6. Egan v. Canada "1995› 2 S.C.R. 513; Law v. Canada (Minister of Employment and Immigration), "1999› 1 S.C.R. 497.

7. Canadian Human Rights Act, R.S., 1985, c. H-6, s. 3.1; as amended 1998, c. 9. s. 11.

8. United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 10: The Role of National Human Rights Institutions in the Protection of Economic, Social and Cultural Rights, 3 December 1998, E/C. 12/1998/25.

9.  12 July 1993, U.N. Doc. A/CONF. 157/23, at para. 36.

10. Report of the World Summit for Social Development (Copenhagen, 6-12 March 1995), UN Doc. A/CONF/166/9 (19 April 1995); Beijing Declaration and Platform for Action, supra.

11. Specialised bodies to promote equality and/or combat discrimination. Report of PLS Ramboll Management (May 2002) Available on-line at: http://europa.eu.int/comm/employment_social/fundamental_rights/pdf/legisln/mslegln/
equalitybodies_final_en.pdf

12. Employment Equity Act, c. 44.

13. Supra, Part II. See also Promoting Equality in the Federal Jurisdiction: Review of the Employment Equity Act. Report of the Standing Committee on Human Resources Development and the Status of Persons with Disabilities. June 2002. pp. 54-55. Available on-line at: http://www.parl.gc.ca

14. Time for Action. Special Report to Parliament on Pay Equity. Canadian Human Rights Commission. February 2001. p. 5.