EI rules unfair for women, part-timers

Changes do little to address the issue

Canada’s employment insurance rules discriminate against part-time workers who are primarily women because of child rearing responsibilities, a federal adjudicator has ruled.

A federal court judge, acting as an umpire under the Employment Insurance Act, found that eligibility rules discriminate against women and parents in part-time paid employment, violating equality rights guaranteed by the Charter of Rights and Freedoms.

New changes to the act will soon be passed in the House of Commons but critics say they only nudge towards dealing with the issues raised by this most recent case. The ruling could have far reaching implications for the employment insurance program.

The ruling was made in a case involving a Winnipeg-based registered nurse denied maternity benefits in 1998 because she fell short of the number of hours needed to qualify for special benefits. Kelly Lesiuk challenged the act’s 700-work hour eligibility requirement. She had worked 667 hours when she was refused benefits. Changes last year to the act changed that qualification to 600 hours for maternity, parental and sickness benefits.

“When a mother works part time because of her unpaid parental responsibilities, she should not receive inferior employment insurance coverage on that account,” said retired federal court judge Roger Salhany in his written decision.

“In my view, the eligibility requirements demean the essential human dignity of women who predominate in the part-time labour force,” he wrote.

The federal government has the choice whether to appeal the Winnipeg decision but if the ruling is upheld by a Federal Court of Appeal, Parliament could be compelled to make changes in line with the decision.

In his statement, Salhany pointed out that the threshold for eligibility is based on an average work week of 35 hours, which fails to take into account that women work on average 30 hours a week.

“This places the onus on part-time workers (whose average work week is 16.5 hours) to increase their weekly hours in order to avoid longer qualification periods and shorter benefit periods. Since women continue to spend approximately twice as much time doing unpaid work as men, women are predominantly affected,” wrote Salhany, adding that under the old rules Lesiuk would have qualified.

The Liberal government changed the eligibility requirements under the act in 1996, more than doubling the number of hours needed to qualify for regular and maternity benefits. The Chretien government promised to restore some of the provisions but they were put on hold when the government called last year’s election. After pressure from labour groups, bill C-2 was introduced, reversing some of the changes made, in particular those that affect seasonal workers. The bill passed third reading in the House of Commons in early April and at press time was awaiting royal assent.

The changes will improve eligibility for parents returning to work who will be exempted from a re-entrance qualification for parents who have received benefits in the past in an attempt to address the issue of parents staying home after their maternity period is up.

Changes to the act coincided with the Winnipeg ruling, which proponents are hailing as a victory for women and labour groups who have been urging the government to modernize employment insurance to make it more reflective of the changes in the workplace, in particular the prevalence of part-time and other non-standard work arrangements.

“The (act) doesn’t work because it is based on a system for workers with full-time jobs. The people who need the protection the most can’t qualify under these rules,” said Kevin Hayes, senior economist with the Canadian Labour Congress (CLC).

“The rules were changed to accommodate a workforce that is almost post-war, male dominated. (The government) literally ignored changes to the labour force in the 1990s (when they made the changes in 1996),” said Hayes.

Hayes said the Lesiuk decision could help 400,000 women who were denied regular benefits and 90,000 women who were denied maternity benefits. The CLC proposes the eligibility requirement for maternity and parental benefits be cut to 360-hours a year.

“These rules clearly violate the constitutional right of women who can’t possibly get the hours needed to qualify, while men can because they don’t carry the majority responsibility for child care,” said Hayes.

The situation is even worse for women who are self-employed, many of whom don’t receive any form of employment insurance. They usually return to work right after having a child because of financial pressures, said Monica Townson, economist and social policy analyst specializing in women’s issues.

“It’s important to realize how important maternity benefits are to women and think about modifying legislation to ensure this,” said Townson.

There are 60 other cases like Lesiuk involving EI eligibility pending across the country.

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