Midwives Win a “Landmark” Pay Decision

Midwives are affected by gender in three different ways: they belong to a profession overwhelmingly composed of women; they provide services only to women; and the services they provide support women's distinctive reproductive capacity to bear children. In a decision that the Association of Ontario Midwives (“AOM”) has called a "landmark", the Human Rights Tribunal recognized that discrimination based on gender has infected the Government of Ontario's determination of pay rates for midwives since 2005. 

The Tribunal's decision fully acknowledges the systemic discrimination that skews pay rates for a profession that is so gendered. What is troubling is that the AOM has spent years of work to obtain this decision and that they had to lay down again facts and principles about women's lives and women's work that were recognized more than two decades ago.

Midwives were first regulated as an independent profession in 1993. In anticipation, in 1985, the Government of Ontario appointed a Task Force on the Implementation of Midwifery, chaired by Mary Eberts, which recommended a framework for the regulation of the profession. The Task Force recognized midwives as specialists in providing care to women with healthy, low-risk pregnancies. As a result of the Task Force recommendations, the pay rate for midwives, as independent health care professionals, was set between the rate for senior nurses and the rate for family physicians in Community Health Clinics. This was done on the basis of a thorough job evaluation, and, at the time, the midwives and the Ministry of Health agreed that this methodology fairly compensated midwives for the actual services they provide, and ensured that gender did not affect their pay rates.

The Tribunal found that for the decade between 1995 and 2005, this structure held, but after 2005, it did not. Midwives compensation rates were affected by wage freezes, and while the rates for family physicians in Community Health Centres were subsequently adjusted, rates for midwives slipped backwards and the previously accepted ratio between the two was not maintained. Subsequently, the Ministry of Health rejected the family physicians in Community Health Centres as an appropriate comparator for midwives pay rates, and also rejected the fact that gender played any role, or should play any role, in the Ministry of Health's consideration of pay rates for midwives. The Ministry of Health maintained this position, even though three different expert reports, including the Courtyard Report issued in 2010, reconfirmed the original principles and compensation structure as appropriate and fair.

The Tribunal had to decide whether it matters that the gender composition of one of the original comparator groups — family physicians in Community Health Centres — has changed since 1993. They were predominantly male when the pay structure was formulated; in 2018 more women than men are family physicians in Community Health Centres. The Tribunal decided that this was not a telling point. The crucial fact here is that midwives are a group of sex-segregated workers, devoted solely to women's reproductive health care, whose compensation levels will be affected by sex discrimination, unless that discrimination is recognized and corrected for. The Tribunal concluded that "the Ministry of Health unilaterally withdrew from the 1993 principles and methodology, leaving the compensation of midwives exposed to the well-known effect of gender discrimination on women's compensation."

Shaping the remedy is left in the hands of the parties, unless they cannot agree. The Tribunal recommends that they "reset their relationship" and establish a new process for maintaining appropriate and non-discriminatory compensation levels for midwives that is based on the original funding principles.

This is an excellent remedy for a circumstance like this one, where complex negotiations are needed, and there is an ongoing relationship. But, if the First Nations Family and Child Caring Society is an example, these parties may be back in front of the Tribunal, perhaps more than once, before a new pay structure, that is free of gender discrimination, is in place.

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