National Post

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Wednesday, October 20, 1999

Equity ruling shows courts in grip of radical feminism
Martin Loney
Financial Post

The Public Service Alliance of Canada's victory yesterday in the $5-billion pay equity case against the federal government will cause no surprise to those who have followed the tortured history of this boondoggle.

The pay equity decision is the culmination of a 15-year saga that began when PSAC used the Liberals' 1978 pay equity legislation to demand substantial pay increases for women in the clerical group who it claimed earned less than their male counterparts.

In his ruling, Federal Court Justice John Evans bought the whole feminist argument. It is the role of the government, he said, to interpret human rights statutes "in a broad and liberal manner." To that end, he said, the federal government must act to end the "longstanding problems of systemic wage differentials arising from occupational segregation by gender and the undervaluation of women's work." Is he talking about South Africa or Canada?

The ruling will bring a considerable windfall to 200,000 current and former public servants, men and women. It is a judicially sanctioned transfer from taxpayers to the allegedly hard-pressed victims of government-sanctioned discrimination.

Judge Evans was also greatly moved by the "substantial injustice" that would be done to thousands of employees, many now retired, who would be deprived of back wages, future wages and pension increases if he rejected PSAC's argument. These are employees, it is worth recalling, who entered into contracts at wages that were freely bargained, and often superior to any earned by private-sector workers, male or female.

The key to PSAC's case is not the comparison of males and females in the same positions performing similar tasks at different pay, but rather the feminist claim that systemic discrimination results in women being corralled into low-paid work, the fabled "pink ghettos."

Federal pay equity legislation, in turn, reflected the powerful influence of radical feminists in the public service, allowing comparisons between pay for jobs that to ordinary mortals might appear entirely different. Dick may be sailing the high seas while Jane wrestles with nothing more risky than a filing cabinet, but that is no reason not to compare the monetary worth of their jobs. What of those males who, like their female co-workers, have freely entered the occupations now labelled pink ghettos and hence share the same supposed wage penalty? They equally have a claim to compensation. It should cause no surprise to learn that the Canadian Human Rights Tribunal wrestled with these weighty issue for no less than 250 days of hearings.

The great advantage of the whacky world of pay equity is that among employees, there are only winners. If Jane is paid too little, Dick is never paid too much. In a world where spiralling public-sector debt has finally reined in public-sector pay awards, pay equity legislation is starting up a new gravy train.

In the private sector, the market ultimately imposes discipline as employers faced with skyrocketing pay equity demands downsize or outsource to protect themselves. In the public sector, the government simply turns to the taxpayer.

The Federal Court decision will immediately cost each of Canada's taxpayers more than $200. The long-term costs will be far greater. The court has given the green light to pay equity activists, who enjoy substantial tax funding, to pursue other cases. And it has demonstrated to public-sector employers where the court's sympathies lie. True federal pay equity legislation covers only the federal government, Crown corporations and federally regulated industries, but provincial legislation in Ontario, Manitoba, Quebec and Nova Scotia is even more sweeping.

At the root of Judge Evans' decision is a convoluted and largely incomprehensible pseudo-science that claims to be able to measure the intrinsic value of each job. Most economists long ago agreed that the market is the only accurate determinant of what a job is worth. With apparently limitless resources, the government and its Human Rights Commission have found no difficulty in recruiting the services of a legion of lawyers, statisticians and pay equity experts who know better.

This has spawned an industry whose methodology defies explanation, except as an attempt to provide a chimera of scientific respectability to a truth already embraced in the legislation: Women are paid less than men because of pervasive labour market discrimination. The trick then is to find a mechanism for measuring what the legislation already knows to be true.

Armed with terms such as heteroscedasticity and homoscedasticity, experts then regale the bench with their findings. Even the supporters of the original 200-page Human Rights Tribunal decision issued by Donna Gillis, including feminist icon Judy Rebick, confessed an inability to follow the report's reasoning.

The proposition that Canadian women are forever and always victims, demanding preferential hiring opportunities or lavish pay adjustments, is not self-evident. Canadian women are 50% more likely than men to graduate from university with a bachelor's degree. There may be more of them, but this obviously has no adverse effect on their earnings. Two years after graduation, they earn more, on an hourly basis, than their male competitors. Relative earnings may change over time; however, this results not from labour market discrimination but from the freely made choices of individuals and families. Male family physicians earn significantly more than female physicians, but does anyone seriously suppose this reflects a systemic discrimination rather than hours of work and the allocation of family responsibilities?

The proposition that women in the federal public service experience pervasive discrimination should have been laid to rest in 1990 with the publication of the report of a task force set up by Pat Carney, then Treasury Board secretary. The task force -- specifically charged with finding evidence of discrimination, staffed by feminists, and supported by a multi-million-dollar budget -- failed to deliver the goods.

In contrast to the mysterious practices of pay equity experts, Statistics Canada provided the task force with the results of cohort studies that asked a straightforward question: Do women in similar occupations, with the same age and length of service as men, receive smaller pay increases over the years? The studies revealed no such pattern.

Unfortunately, there are no human rights commissions or tax-funded advocates whose mandates include broadcasting good news, but we have a plethora of individuals whose careers depend on the continuing pursuit of systemic discrimination. If one study fails to find it, the answer must surely lie in commissioning another. It is doubtful whether any end is in sight.

In the face of a powerful lobby, which purports to speak in the name of equality, there is scant prospect that Canadian courts will act as an independent referee. Feminism has carved out a central place in Canadian jurisprudence.

The government's options are limited. Foiled by the folly of its own legislation, it can ultimately take the case to the Supreme Court -- the same court that recently concluded B.C. firefighter tests discriminate against women.

Canadian taxpayers are already on the hook for tens of millions of dollars as the PSAC case has wended its way through the Human Rights Commission and the tribunal to the Federal Court. Perhaps it is time to cut our losses and remember how we got here.

Martin Loney's most recent book is The Pursuit of Division: Race, Gender and Preferential Hiring in Canada.

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