Pay Equity: A Fundamental Human Right

Abstract

This paper undertakes the limited task of determining what interpretive consequences, if any, might flow from the removal of federal pay equity provisions from their current location in the Canadian Human Rights Act and placement of such provisions in their own stand-alone legislation. Part of the interpretive stance courts currently bring to their consideration of the federal pay equity provisions reflects the placement of these provisions within federal human rights legislation.

Courts have held that human rights legislation has a special nature or quasi-constitutional status. This status results from the fundamental character of the values the legislation expresses and the goals it seeks to implement. There are three implications of this understanding. First, human rights legislation, by virtue of this status, is given a liberal and purposive interpretation. Second, human rights legislation is given an “organic and flexible” interpretation. The legislation is read in light of evolving social conditions and in terms of the most recent conceptions of human rights. Third, in circumstances of conflict or inconsistency with other legislation, the provisions of the human rights legislation prevail, regardless of timing of enactment.

Enactment of stand-alone pay equity legislation is unlikely alone to cause significant change in the judicial fortunes of pay equity measures. There are a number of reasons for this conclusion. Pay equity provisions share with other aspects of human rights legislation the characteristic of implementing protection of fundamental human rights. The consonance of pay equity measures with the international human rights protections to which Canada has obligated itself and with the equality provisions of the Canadian Charter of Rights and Freedoms, attests to this fundamental aspect. Pay equity provisions can also be characterized as remedial, providing recourse for disadvantaged and historically discriminated-against individuals. This latter claim is born out by the disproportionate economic disadvantage faced by Canadian women and their comparatively lower remuneration in the labour market. Additionally, the primacy applicable to human rights legislation in the face of other contrary legislation, is not likely to be a necessary condition of effective pay equity law. Thus, this paper does not find that concerns about losing quasi-constitutional status should figure in consideration of what legislative form to give a revised pay equity law.

Effective federal pay equity strategy is a critical political and legal issue. The question is a complex one and attempts to provide legislative remedial action have proven to be a challenge. Thus, judicial treatment of legislative measures is an important consideration. However, the real challenge does not lie in ensuring continued appropriate interpretive principles for the legislation. Rather, the tough task ahead rests in the formulation of more effective content for federal law and policy - content that results in real progress in addressing the stubborn problem of gender-based wage inequities.

Keywords: Canadian Human Rights Act, Pay equity - Law and legislation, Civil rights - Canada