Feds discriminated against nurses

Tribunal finds doctors, nurses did same job but paid differently

More than 400 nurses working as medical adjudicators for the federal government were discriminated against because of their sex, a Canadian Human Rights Tribunal has found.

For 35 years, nurses, mostly women, have worked alongside doctors, mostly men, adjudicating disability claims under the Canada Pension Plan. The tribunal heard evidence from the nurses and doctors that both groups do the same work, yet the doctors are paid twice as much.

The government classifies the nurses as program administrators and the doctors as health professionals. This difference means doctors receive better compensation, benefits, training, professional recognition and opportunities for advancement.

“Whatever the source of the adverse treatment, you can’t treat women adversely with respect to men if they’re doing the same or substantially similar work,” said Philippe Dufresne, director and senior counsel for the Human Rights Commission in Ottawa.

The tribunal ruled in favour of the nurses in December. It ordered the Treasury Board of Canada, the Public Service Agency of Canada and Social Development Canada to cease the discriminatory practices and work with the nurses to reach a financial settlement within three months.

The ruling is a reminder to employers that one group of employees can’t be treated differently from another group doing the same job, said Dufresne.

“Employers have to be careful in their pay and in their classification to ensure that predominately female groups aren’t adversely treated as compared to predominately male groups,” he said.

This case is different from pay equity cases, where claimants have to prove two groups doing work of equal value are being treated differently.

Trying to establish two jobs are of equal value makes pay equity cases notoriously complicated, said Dufresne, and therefore can take decades to resolve.

“This case is special because it didn’t rely on the notion of the value of work,” he said. “It looked at the nature of the jobs and found that they were the same or substantially the same jobs.”

He added that it’s an important ruling because it looks at more than pay — it looks at how employees are classified and the kind of benefits and opportunities for training and advancement an employee receives.

For instance, even though the nurses and the doctors both use their medical expertise to adjudicate the claims, only the doctors receive education allowances to maintain their medical qualifications, said Laurence Armstrong, the nurses’ Victoria-based lawyer.

“The federal civil service is based on a classification system that is so ludicrously stupid it’s beyond belief. Their inability to rationalize and modernize their classification system is what leaves them in these positions,” he said.

It’s surprising to find such blatant discrimination still exists, said Beth Bilson, a professor of law at the University of Saskatchewan in Saskatoon.

“There was a kind of an assumption that we had moved beyond where women were being paid less for doing the same job,” she said.

There was also an assumption that when discrimination became illegal, employers would immediately start to fix the problem. But the complaints-based system gives employers a false sense of security, said Bilson.

“Employers feel they don’t have to do anything until somebody complains,” she said.

When it comes to nurses and doctors, there’s still a pervasive notion that doctors are worth more than nurses, even if they’re doing the same work, said Bilson.

But the lack of a medical degree isn’t enough to justify the different treatment the nurses received, said Armstrong.

“In the federal public service, you don’t get paid according to your qualifications, you get paid according to the work you do,” he said. “They’ve got to cough up the dough.”

However, Armstrong said he is skeptical the parties will reach a financial settlement without external intervention and is prepared to go back to the tribunal in March.

“It’s going to be resolved. It’s just a question of if it’s going to be resolved by mediation and discussion or am I going to have to get an order and enforce it,” he said.

The federal government has filed an application for judicial review based on technical and legal issues with the Federal Court of Canada and, as such, cannot comment on the case, said Pierre-Alain Bujold, a spokesperson for the Treasury Board secretariat.

However, the government has entered into discussions with the stakeholders, as recommended by the tribunal, and is committed to continuing its discussion with the complainants, he said.

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