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Equal Opportunity and Gender Disadvantage
Published online by Cambridge University Press: 09 June 2015
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Recently, in Canada both the Federal Government and various provincial governments have introduced a series of measures intended to address gender inequalities in the workplace. These measures are of two basic types. Employment equity policies involve the implementation of affirmative action programmes designed to encourage the hiring and promotion of more women in, for example, the civil service. Pay equity policies have sought to institutionalize the principle of equal pay for work of equal value or, to use the American terminology, comparable worth. The aim of this paper is to resurrect the presently out of fashion view that the principles of affirmative action and comparative worth that underlie employment equity and pay equity can be defended on the grounds that they contribute to the realization of an ideal of equality of opportunity between men and women in Canadian society. This view, although once prevalent among those concerned with gender issues, has been pushed aside, largely because of doubts about the visionary depth of the ideal of equality of opportunity. It has been replaced instead by an ideal of equality of results which emphasizes the goal of reducing the gender wage gap. It is my intention here to formulate a principle of equality of opportunity that can incorporate recent feminist legal and political philosophy in a way that offers a promising way to analyze issues posed by gender inequalities in the workplace and, as a result, provide a clear rationale for the recent employment equity and pay equity initiatives in Canada.
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- Copyright © Canadian Journal of Law and Jurisprudence 1994
References
This paper has benefited from a major three year research grant from the Social Sciences and Humanities Research Council of Canada and a B.C. Challenge Grant. I am grateful to Avigail Eisenberg and Margaret Moore for valuable written comments on an earlier draft, and Meredith Wadman and Doug Simpson for research assistance.
1. Sen, Amartya “Equality of what?” in Choice, Welfare, and Measurement (Oxford: Basil Blackwell, 1982) at 353–69.Google Scholar I have discussed these issues in depth in Rights and Deprivation (Oxford: Oxford University Press, 1993) ch. 5, and “Realizing Equal Life Prospects: The Case for a Perfectionist Theory of Fair Shares” in Glenn, Drover & Kerans, Pat eds, New Approaches to Welfare Theory (London: Edward Algar, 1993).Google Scholar
2. R.S.O. 1990, chap.P.7.
3. Roberta Edgecombe Robb, “Equal Pay for Work of Equal Value: Issues and Policies” (1987) 13 Canadian Public Policy VIII 445 at 455.
4. R.S.C. 1985, ch.23 (2nd Supp.).
5. For a general discussion, see Gunderson, Morley “Male- Female Wage Differentials and Policy Responses” (1989) 27 J. of Econ. Lit. 46.Google Scholar
6. Hacker, Andrew “‘Welfare’: The Future of an Illusion” New York Review of Books (28 Feb 1985) at 37–42 Google Scholar and Aaron, Henry J. & Lougy, Cameran M. The Comparable Worth Controversy (Washington: Brookings Institution, 1986) at 1–15;Google Scholar For more skeptical views about the effect of affirmative action and comparable worth on the gendered wage gap in the U.S., see respectively Blum, Linda M. Between Feminism and Labor (Berkeley: University of California Press, 1991) at 28–34 Google Scholar and Kelly, Rita Mae & Baynes, Jane “Conclusion” to Kelly, Rita Mae & Baynes, Jane eds, Comparable Worth, Pay Equity, and Public Policy (Westport: Greenwood Press, 1988) 239 at 244–45.Google Scholar
7. Indeed, it has even been suggested that the Ontario Pay Equity Act will increase the wage gap among women. See Armstrong, Pat & Armstrong, Hugh “Lessons from Pay Equity” (1990) 32 Studies in Pol. Econ. 29 at 52.Google Scholar
8. For a more agnostic pronouncement, see Gunderson, Morley, Muszynski, Leon & Keck, Jennifer Women and Labour Market Poverty (Ottawa: Canadian Advisory Council on the Status of Women, 1990) at 159–61.Google Scholar This is partially because of the conceptual difficulty of understanding how the rationale for pay equity can be to reduce the gendered wage gap: “While the wage gap bas been an important factor in the identification of the need for pay equity, it will be less useful in assessing its impact. The wage gap is based on the earnings of individual men and women. Pay equity will equalize the salaries of female jobs with equally valued male jobs that are of equal value.” From Weiner, Nan & Gunderson, Morley Pay Equity: Issues, Options and Experiences (Toronto: Butterworths, 1990) at 11.Google Scholar
9. See, for example, McDermott, Patricia “Pay Equity in Canada: Assessing the Commitment to Reducing the Wage Gap” in Fudge, Judy & McDermott, Patricia eds, Just Wages: A Feminist Assessment of Pay Equity (Toronto: University of Toronto Press, 1991) 21 at 31;Google Scholar McDermott, Patricia “Pay Equity in Ontario: A Critical Legal Analysis” (1990) 28 Osgoode Hall L. J. 381 at 407;Google Scholar Burt, Sandra “Legislators, Women, and Public Policy” in Burt, Sandra, Code, Lorraine & Dorney, eds, Changing Patterns: Women in Canada (Toronto: McClelland and Stewart, 1988) 129 at 142–43;Google Scholar and Winn, Conrad “Affirmative Action for Women: More Than a Case of Simple Justice” (1985) 28 Can. Publ. Admin. 24.Google Scholar For an argument to the same effect in an American context, see Weiler, Paul “The Wages of Sex: The Uses and Limits of Comparable Worth” (1986) Harv. L. Rev. 1728.Google Scholar
10. Report of the Royal Commission on the Status of Women in Canada (Ottawa, 28 September 1970) (Florence Bird, Chair) esp. at 76–77, 80,90, & 114, 121, 124, 142. Report of the Royal Commission on Equality in Employment (Ottawa, October 1984) (Rosalie Abella, Chair) at 3; Green Paper on Pay Equity (Toronto: Government of Ontario, November 1985) (Ian Scott, Minister Responsible for Women’s Issues) at i.
11. Baker, John Arguing for Equality (London: Verso, 1987) at 46.Google Scholar
12. A recent expression of this view can be found in Andrew Hacker, “The New Civil War” New York Review of Books (23 April 1992) at 30.
13. See, for example, Paul, Ellen Frankel Equity and Gender: The Comparable Worth Debate (New Brunswick, NJ: Transaction Publishers, 1989) at 121–22,Google Scholar and Flanagan, Thomas “Equal Pay for Work of Equal Value: Some Theoretical Criticisms” (1987) 13 Canadian Public Policy 13 435 at 439–40.CrossRefGoogle Scholar
14. Rawls, John A Theory of Justice (Cambridge, MA: Harvard University Press, 1971) at 66.Google Scholar
15. Ibid, at 73. This analysis ignores certain ambiguities in Rawls’s presentation of fair equality of opportunity. See Pogge, Thomas Realizing Rawls (Ithaca: Cornell University Press, 1989) at 161–73 and my unpublished paper, “Can an egalitarian justify universal access to health care?” (October 1992).Google Scholar
16. Rawls, , A Theory of Justice at 274ff.Google Scholar
17. Rawls, , A Theory of Justice at 73.Google Scholar
18. See, for example, Okin, Susan Moller “Justice and Gender” (1987) 16 Phil. & Publ. Affairs 42 Google Scholar and Okin, Susan Moller Justice, Gender, and the Family (New York: Basic Books, 1989) chs. 1 & 5.Google Scholar
19. Pub. L. No. 88-352,78 Stat. 241 (1964).
20. Fishkin, James S. Justice, Equal Opportunity, and the Family (New Haven: Yale University Press, 1983) chs. 1–2.Google Scholar
21. Gunderson, et al., Women and Labour Market Poverty, supra note 8, at 20;Google Scholar Weitzman, Lenore The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (New York: The Free Press, 1985);Google Scholar Okin, Susan Moller “Economic Equality After Divorce“ (Summer 1991) Dissent 383 at 384.Google Scholar
22. See my Rights and Deprivation, supra note 1, ch. 8.
23. Okin, Susan Moller “Gender, The Public, and The Private” in Held, David ed., Political Theory Today (Stanford: Stanford University Press, 1991) 67 at 71.Google Scholar
24. See, for example, MacKinnon, Catharine Sexual Harassment of Working Women (New Haven: Yale University Press, 1979) at 107–16,Google Scholar and Rhode, Deborah Justice and Gender (Cambridge, MA: Harvard University Press, 1989) at 2–3.Google Scholar
25. For an account of this view in Canada at the turn of the century, see Constance Backhouse, Petticoats and Prejudice (Toronto: The Osgoode Society by the Women’s Press, 1991) at 276–88.
26. City of Los Angeles, Dep’t of Water and Power, et al. v. Manhart, 98 S.Ct. 1370,435 U.S. 705 (1978). I draw here on Rhode’s Justice and Gender, supra note 24 at 103-107 and MacKinnon’s Sexual Harassment of Working Women, supra note 24 at 116. MacKinnon appears now to deny the significance of the Manhart case as a challenge to the difference view. See her “Legal Perspectives on Sexual Difference” in Rhode, Deborah ed., Theoretical Perspectives on Sexual Difference (Cambridge, MA: Harvard University Press, 1990) 213 at 220.Google Scholar
27. MacKinnon, Catharine A. Towards a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989) at 228.Google Scholar
28. Rhode, , Justice and Gender, supra note 24 at 83.Google Scholar
29. See also Rhode, , Justice and Gender, supra note 24 at 85.Google Scholar
30. Rhode, , Justice and Gender, supra note 24 at 4.Google Scholar
31. William W. Black, “Intent or Effects: Section 15 of the Charter of Rights and Freedoms” in Weiler, Joseph M. & Elliot, Robin M. eds, Litigating the Values of a Nation: The Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1986) 120.Google Scholar
32. Interestingly, France is quoted at the outset of the Abella Report of the Commission on Equality in Employment, supra note 10 at 1.
33. Report of the Royal Commission on Equality in Employment, supra note 10 at 193.
34. Knopff, Rainer with Flanagan, Thomas Human Rights and Social Technology: The New War on Discrimination (Ottawa: Carlton University Press, 1990) at 10–11, 157-77 and 183ff.Google Scholar
35. This may, however, have certain costs in terms of undermining the cohesiveness of the women’s movement. See Brenner, Johanna “Feminist Political Discourses: Radical Versus Liberal Approaches to the Feminization of Poverty and Comparable Worth” (1987) 1 Gender and Society 447.Google Scholar
36. Paul, Equity and Gender, supra note 13 at 40–46 and 51–52.Google Scholar
37. See my discussions in “Realizing Equal Life Prospects…” in Drover & Kerans, supra note 1, at 3.2 and “Ambition-sensitivity, Abstract Egalitarianism, and Access to Health Care” in Burley, J.C. ed., Reading Dworkin (Oxford: Basil Blackwell, forthcoming).Google Scholar
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