In what is being hailed as a “historic, landmark” decision, Ontario’s human rights tribunal has ordered the Ford government to boost the wages of the province’s 963 registered midwives due to long-standing gender discrimination.
The ruling last Wednesday, which flows from a 2018 interim finding of gender discrimination, orders a 20 per cent pay hike retroactive to 2011. It also awards eligible midwives $7,500 for “injury to dignity, feelings and self-respect.”
The decision could mean a payout of as much as $186,000 for a midwife with 10 years of experience. And it means top salaries could jump to as much as $130,000 from about $107,000 today, according to the Association of Ontario Midwives, which launched the pay equity case in 2013.
“It really feels like such a landmark, historic decision,” said association policy director Juana Berinstein.
“We are all really moved, really emotional, to see the acknowledgment from the human rights tribunal of the discrimination that has been experienced by midwives in terms of compensation,” she said in an interview.
“The orders really get at closing the gap and providing retroactive compensation for workers who were impacted by a pay equity gap. And they also provide remedies to prevent discrimination from happening in the future,” Berinstein added.
The tribunal orders the government to launch a study conducted by a pay equity expert to determine additional adjustments that may be owing to eligible midwives from 2014.
And adjudicator Leslie Reaume further orders the government to develop a gender-based analysis of the provincial midwifery compensation policies and practices to prevent future discrimination.
Midwives, who must complete a four-year bachelor of health sciences degree and are on call 24 hours a day, seven days a week, currently earn between $82,000 and $107,000 a year. Annual salaries for family physicians working in community health clinics — a historic wage comparator for Ontario midwives — run between $190,000 and $220,000.
Last year, midwives supported 25,283 Ontario births, or about 18 per cent of all births in the province.
A spokesperson for the Ontario Ministry of the Attorney General said the government is reviewing the decision.
Since the province has applied for a judicial review and the matter is before the court, spokesperson Victoria Clare said it would be “inappropriate” to comment further.
Ontario Divisional Court is scheduled to hear the case from April 7 to 9 this year.
Midwives hope the province accepts the decision and abandons its appeal, said midwife Elizabeth Brandeis, president of the association.
“I am really hopeful that the groundswell of support from the people who understand the value of midwives will be able to put pressure on this government,” she said.
“We know that continuing to fight this case through the court system is a waste of taxpayer money. We know the longer the government delays implementing the remedy, the more they have to pay,” she added.
In its application for a judicial review, the province argues the tribunal failed to consider evidence concerning the differences in training, responsibilities, patient populations and scope of work between physicians and midwives.
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The tribunal heard no direct evidence that sex was a factor in the differences in compensation and ignored evidence that most physicians in community health centres are women, according to the government’s application.
Brandeis acknowledges the predominance of female physicians in community health centres, but said the tribunal accepts midwives’ view that medicine “is still quite dominated by men, if you look at positions of power and decision-making within medical institutions.”
Last week’s ruling comes in the wake of the tribunal’s 2018 interim decision that found the midwifery profession has been chronically undervalued because it is primarily staffed by women, is concerned with providing care to women, and deals with a health-care issue associated with women.
The case, filed by midwives in 2013, was seeking redress, including retroactive pay for gender-based discrimination dating back to 1997, shortly after midwifery became a formally regulated part of Ontario’s public health system in 1993.
Between 1993 and 2005, the provincial Health Ministry negotiated pay for midwives and positioned their skills, effort, responsibility and working conditions between those of nurse practitioners and physicians in community health centres, the tribunal noted in its ruling last week. In 1993, midwives’ pay was set at 65 per cent of community health centre physicians.
But the ministry stopped using this benchmark after 2005 and hasn’t conducted a study of midwives’ work and pay since 2010. At that time, a non-binding joint review conducted by midwives and the Health Ministry recommended a 20 per cent increase to midwives’ pay along with regular salary reviews based on the original benchmarks.
The province disagreed, and in 2018 the tribunal upheld the original benchmark, ruling that the government was underpaying midwives — a predominantly female profession — compared to community health centre physicians, a historically male profession.
But instead of issuing a compensation order, the tribunal recommended midwives and the Health Ministry negotiate appropriate redress.
The ministry, however, refused to negotiate, saying it disagreed with the tribunal’s decision and sought leave to appeal to the Divisional Court
As a result, the midwives went back to the tribunal and asked it to move forward with a remedy, Brandeis said.
“The fact that the remedy includes retroactive pay to what the (2010 compensation study) would have implemented does feel vindicating,” she said.
Brandeis said the decision is particularly satisfying for midwives because it compels the government “to really think about the gendered impacts of work that is so steeped in gender.
“One of the large motivators for midwives in bringing this case forward wasn’t just about midwifery, but taking the step for all sex-segregated workers, for all female-dominated professions, for all professions that are subject to a gender pay gap,” she said.
The midwives’ lawyer Mary Cornish said the ruling is important because it provides “a road map” for other equity-seeking groups.