Midwives win landmark systemic gender discrimination ruling at Ontario Court of Appeal: Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458
In an important decision for equity-deserving groups, the Ontario Court of Appeal has unanimously confirmed that Ontario has engaged in systemic pay discrimination of midwives that must be remedied.
The decision in Ontario (Health) v. Association of Ontario Midwives is the culmination of an almost ten-year legal battle to address the Ministry of Health’s systemic gender discrimination against midwives that began at the Human Rights Tribunal of Ontario.
Midwives work at the crossroads of a gender trifecta: midwifery is a service provided primarily by women, for primarily pregnant women and in relation to female reproductive health. In contrast, physician work was and remains strongly associated with male work and benefits from the attendant male privileges, including medical dominance in the health care system.
Midwives first became a regulated health profession in Ontario in 1994. At the time of regulation, a joint working group from the Ministry of Health and Association of Ontario Midwives recognized that, as an almost exclusively female profession, midwives were acutely susceptible to having their work devalued and undercompensated. The parties accordingly developed gender-sensitive compensation principles (the “1993 principles”) that would ensure that midwives would be paid in a manner that objectively valued their work in comparison to an appropriate male comparator. Due to the overlap in the work of family physicians, Community Health Centre (“CHC”) family physicians, as well as obstetricians, were identified as male comparators for determining equitable compensation. Senior Nurses (now Nurse Practitioners) at CHCs were also used as a comparator to ensure that midwifery compensation was not set too low. Applying these principles, the parties relatively positioned midwives’ compensation between that of the CHC physician and Nurse Practitioner. At the time of regulation, the most senior midwife was paid 90% of the base salary of an entry level CHC physician.
The 1993 principles were intended to ensure that prevailing negative stereotypes about the value of women’s work were eliminated from the compensation scheme. Applying this gender-sensitive, objective methodology, the compensation of the highest paid .
However, as time passed the Ministry of Health moved away from the 1993 principles, as a pay gap between midwives and their physician comparators widened. By 2010, the Ministry of Health had unilaterally abandoned the 1993 principles, including the need for a physician comparator, without putting in place any gender-sensitive, objective process that would ensure that midwives’ compensation was free of systemic gender discrimination. By 2010, the highest paid midwife was being paid only 57% of the lowest level of pay for a CHC physician.
A compensation study that was jointly commissioned by the Ministry of Health and AOM confirmed the appropriateness of CHC physicians as comparators and recommended a 20% “equity adjustment” to midwife compensation effective April 1, 2011.Rather than implementing that recommendation, Ontario rejected the study and instead froze midwives’ compensation at inequitable levels under a policy of wage restraint. The Ministry of Health took no steps to investigate the midwives’ concerns about inequitable pay. Nor did it apply well-recognized exemptions for human rights and pay equity adjustments under wage restraint legislation and policies.
Determined to address the government’s systemic gender discrimination against midwives, the Association of Ontario Midwives filed an application with the Human Rights Tribunal of Ontario in 2013.
At the conclusion of a lengthy hearing, the Human Rights Tribunal of Ontario found Ontario liable for systemic discrimination in setting midwives’ compensation. The Tribunal emphasized that the Ministry of Health had failed to take a proactive approach to preventing the well-known effects of systemic gender discrimination on the compensation of this predominantly female profession. In a separate decision on remedy, the Tribunal ordered Ontario to increase midwife compensation by 20% retroactive to 2011, to reinstate the gender-sensitive 1993 principles and physician comparators, and to conduct a joint compensation study with the AOM to determine any further compensation adjustments owing for the period from 2014 onwards. The Tribunal also ordered the Ministry of Health to retain an expert in gender-based analysis to conduct a review of the ministry’s compensation policies and practices with respect to midwives in order to bring them into compliance with the Human Rights Code..
Ontario unsuccessfully appealed first to the Divisional Court and then to the Court of Appeal of Ontario. Both levels of court unanimously upheld the Tribunal’s reasoning and dismissed the applications. The AOM was represented by Mary Cornish, Adrienne Telford, Jackie Esmonde, and Lara Koerner-Yeo..
The Court of Appeal’s judgment is significant for several reasons.
First, the Court of Appeal represents yet another appellate level court confirming that systemic gender discrimination is a persistent and pervasive factor affecting women’s compensation and that it takes proactive vigilance to address. The Court noted that in a claim of systemic discrimination, “it can be difficult to identify one single, rule, policy, or procedure that results in adverse impact discrimination” (para 11). Rather, “system discrimination may emerge from an ‘invisible structure, with its accompanying set of practices’ or as a ‘complex web of seemingly neutral, systemic barriers” (para 11).
Midwifery is an iconic example of occupational gender segregation. The Court of Appeal recognized it is “the ultimate sex-segregated profession” and that “occupational segregation and low wages ‘usually go hand in hand’” (para 13). Female jobs are often undervalued and that there was an “obvious risk that midwives would be under-compensated” as a result (para 13). The solution to the problem of systemic gender discrimination is well-known: employers and compensation setters must apply a gender-sensitive mechanism for objectively assessing the value of women’s work in comparison to male-identified work.
Second, the Court of Appeal affirms that government, employers, and other compensation setters have a proactive duty to prevent discrimination and close the gender pay gap. In this case, the Ministry of Health could not point to any proactive attempts it had taken to monitor midwives’ compensation for the impact of gender discrimination. The Ministry of Health also failed to take seriously and reasonably respond to the AOM’s concerns about gender discrimination in midwives’ compensation, even though the Ministry was aware of the risk of systemic gender discrimination creeping in. Thus, the Court concluded, “it was reasonable for the Adjudicator to rely on the [Ministry of Health’s] failure to monitor as a basis for concluding that gender was a factor in the adverse treatment of midwives” (para 173).
Finally, the judgment should serve as a warning that employers and compensation setters must closely examine their compensation policies and practices to ensure that they are not producing and reproducing systemic discrimination, whether conscious or otherwise. Ignoring pay equity gaps and other systemic workplace disadvantages affecting equity seeking groups can lead to serious human rights violations and exposure to significant damages, regardless of whether those violations were intentional. Employers and compensation setters are now on notice to use an intersectional human rights lens, that takes into account Human Rights Code protected grounds of discrimination, including gender, race, gender identity, and disability, at the outset in designing their compensation policies and practices.
In light of the well-known pay equity gaps that continue to exist in workplaces particularly in female predominant workplaces, there is much work to be done to close the gender pay gap.