From Invisibility to Equality? Women Workers and the Gendering of Workers' Compensation in Ontario, 1900-2005

Storey, Robert, Labour/Le Travail

She's single, black, and pregnant, and she's on welfare. And all these things are mentioned. Well, black is not mentioned. She's from Ethiopia. But the fact that she's on welfare is mentioned in the decision. The fact that she's pregnant is mentioned. The fact that she has had, you know, somewhat of a social life, and had a boyfriend in the past. So, some of this got mentioned in the appeal decision. Some of it's mentioned right in the file where the psychologist says, you know, how much chronic pain can she have if she can take a flight to Ethiopia? And she has had somewhat of a social life, having revealed to me that she recently . broke up with her boyfriend. This is something, these types of issues, I've never seen in other files, particularly a man's file. He's recently broken Up with. ... I've never read in any male worker's file anything about relationships as far as, relationships illustrating that they have a social life. (1)

THE ABOVE WORDS, spoken by Linda Vanucci, a Toronto lawyer who works in a legal clinic specializing in assisting injured workers with their workers' compensation claims, point to the principle concern of this paper: the gendering of the Ontario workers' compensation system over the course of the 20th century. If we understand gender as a set of processes, relationships, and structures that create and reproduce inequalities between women and men, (2) then it is clear that since its inception in the mid 1910s, the Ontario workers' compensation system has been structured and/or has functioned in ways that systematically disadvantage injured women workers. The mechanisms used to produce the various inequities have changed over this period. As the paper will show, while the present statute no longer excludes the bulk of women workers from basic coverage, or distinguishes between married and non-married women as dependents and survivors of men killed on the job, formal statutory visibility and equality is undermined by decision makers who continue to view women as secondary wage earners, who see them as biologically predisposed to certain kinds of injuries and illness, and, as the example above illustrates, who privilege their "social" over their working lives in the adjudication of their claims.

However, if we are to more fully understand the experience of this and other women as gendered, we need to situate their experiences within the role workers' compensation systems play in the larger political economy of capitalist production and labour market relations. According to Grant Duncan, "[w]orkers' compensation is an instrument of government, serving the political and economic objectives of minimizing a cause for industrial conflict and maximizing capital accumulation, while simultaneously managing the conduct of the injured worker." (3) As the paper will demonstrate, while workers' compensation laws were enacted with an eye towards ameliorating conflict between injured workers and their employers--and between labour and capital more generally, the laws and their administration have often led to individual and, more significantly, collective protest. That is, workers' compensation boards have not always been successful in "managing the conduct of the worker." With regard to maximizing capital accumulation, workers' compensation systems are class-based in form and practice: they are an institutional/ administrative manifestation of structural relations of embodied dominance that, while taking different forms for working class women and men, coerced both sexes into jobs that were low paying and inherently hazardous. (4) Early 20th century workmen's compensation laws were directed primarily at these jobs the "dangerous trades"--or those associated with heavy industrial or primary labour. While such an orientation might seem logical given that workers in such industries were seemingly more susceptible to accident and injury, that logic did not incorporate compensation rates that adequately attended to the economic needs of the injured worker. Indeed, the reality of the legislative and regulatory machinations of such laws ensured that workers could never recover their full wages in the event of either temporary or permanent disability. Already earning less than those in middle class occupations and the professions, injured working class women and men encountered workers' compensation systems that reinforced the economic/material dimensions of class inequalities characteristic of industrializing capitalist societies in this period. (5)

There is, then, a need to understand the historical and ever-changing intersection between gender and class. As the situation of the injured worker who opened this paper attests, we must also be cognizant of the processes and consequences associated with racialization. A much discussed and contested concept, Robert Miles' understanding that racialization refers to "ideological practices through which race is given significance, and cultural and political processes or situations where race is invoked as an explanation or a means of understanding," is employed in this paper. (6) It is clear, as numerous studies have demonstrated, (7) that for many government, business, and labour officials building the Canadian nation was synonymous with the ideological and political construction of a "white" nation expressed in attitudes, policies, and practices that embraced a generalized, open hostility to Asians and particularistic opposition to workers from eastern and southern Europe. As the paper will also show, such prejudicial attitudes and discriminatory practices could be found decades later within the Ontario Workmen's Compensation Board (WCB). In this latter instance, however, such treatment precipitated sustained resistance among these different communities, particularly Italian working class women and men concentrated in Toronto's west end. While such practices on the part of the WCB have attenuated since the mid 1980s, there is the fleeting suggestion by injured workers of various racialized groups that their status as immigrant workers, in most cases with little or no knowledge of the law and its policies and regulations, renders them highly vulnerable to a workers' compensation system under pressure from employers and governments to cut costs.

To understand the gendering of the Ontario workers' compensation system, then, we must integrate, in various dimensions and degrees, the intersecting concepts/processes/structures of class and racialization. As I shall outline, the 1915 Workmen's Compensation Act (WCA) statutorily enshrined the assumptions of the day that women's paid work was of less value than that of men's while simultaneously augmenting laws pertaining to regulating workplace health and safety that either excluded and/or systematically disadvantaged women. (8) The situation remained uncontested until the 1970s when a vibrant and politically influential injured workers' movement (IWM) emerged and, in small but important ways, began to challenge the gendered and racialized dimensions of the workers' compensation system. As it happened, the victories secured at this juncture by the IWM that impacted on women--both as injured workers and as wives, mothers, and widows of injured workers, proved to be more symbolic than material. For, while a 1982 change in the name from "Workmen's" to "Workers' Compensation Act" was symbolic of a formally gender neutral statute (continued with the passage of the Workplace Safety and Insurance Act in 1997), women workers injured over the past two decades report that their claims are being processed by WCB officials who downplay the severity and the legitimacy of their injuries, on the one hand, and who circumscribe rehabilitation and job training programs with gendered notions that their jobs are secondary in importance to that of male members of their households, on the other hand. No longer totally ignored, injured women workers now confront a neo-liberal, increasingly welfarized workers' compensation system whose formal gender neutrality does not address entrenched labour market inequalities or the regulatory discrepancies between laws and their application.

Not One "Muffled Voice"

MOST ANALYSES OF WORKMEN'S compensation in Ontario pay tribute to the first two decades of the 20th century when the "modern" system of no-fault insurance was fiercely debated and then implemented. As these studies have outlined, the 1915 WCA was a product sensitive to the pressures and turmoil of the times. (9) Workers and unions were angry and frustrated with the increasingly visible carnage of industrial production. Moreover, while injured workers were experiencing some success in suing their employers, they were exasperated with a juridical system that remained prohibitive on almost all counts: it was expensive, ideologically hostile, and the compensation awards fell far below what was required for minimal subsistence. For their part, employers were searching for different pathways as well. As Michael Piva recounts, in addition to their concerns about the relative growing successes of workers in the courts, they were, along with the Ontario government, interested in finding ways to attend to the growing industrial conflict and political radicalism among Ontario workers.

In the time-honoured Canadian tradition, in 1910 the Progressive Conservative government of Sir James P. Whitney called upon Ontario Chief Justice Sir William Meredith to head a royal commission with a mandate to investigate various systems of workmen's compensation and make recommendations for changes to the one in place in his home province. (10)

Meredith took three, years to complete his deliberations. Over that time he heard testimony from scores of individuals representing labour, business, and the insurance industry, and traveled to the United States, England and countries within Europe to view the operation of their respective workmen's compensation systems first-hand. In the end, his draft act--which was adopted by the government almost in its entirety--was viewed by Meredith as a just compromise between these competing interests. Workers injured on the job would be guaranteed some form or amount of compensation. This was a victory for injured workers. In return, however, injured workers would have to relinquish their right to sue their employers. This was a victory for Ontario employers. Ultimately, as Eric Tucker (11) has pointed out, while marking an advance over the uncertain and fundamentally inequitable system of employer's liability, the 1915 Act did not stray beyond the economic, political and ideological boundaries of capitalist market relations. That is, while "the historic compromise" of a no-fault system replacing tort action assured injured workers in Ontario that their accident and injury would receive a modicum of economic recognition, this and other changes did not challenge or encroach upon the rights of management to produce their products any differently--or even more safely (12) than they had prior to the passage of the Act.

Nor did this legislation challenge the dominant gender ideologies of the period--perhaps the most relevant of which related to the roles of women and men in the interconnected realms of production and reproduction. As Bradbury, Parr, Sangster, and Pierson (13) have written in studies that bookend this historical moment, male workers were understood to be the main providers, and, in turn, they expected to be paid wages sufficient enough to maintain the daily upkeep and generational reproduction of their family households. The latter was, in turn, understood to be the work of the female members of the household. Encapsulated in the notion of the "family wage," such gender ideologies went both unquestioned and unchallenged in Meredith's Royal Commission proceedings and in Final Report on Laws Relating To the Liability of Employers To Make Compensation To Their Employees For Injuries Received In The Course Of Their Employment Which Are In Force In Other Countries, And As To How Far Such Laws Are Found To Work Satisfactorily. (14) Aside from their hegemonic stance in larger society, the absence of contest and conflict regarding such gender ideologies can be further explained by the fact that of the scores of employees interviewed, not one was a woman. In contrast to the 1880s Royal Commission on the Relations of Labor and Capital where 102 women testified, there was not even one "muffled voice" to be heard. (15) The almost 1,300 pages of testimony reveal that their accidents, injuries, and illnesses were not even of minor concern. Rather, what did generate anxiety among many of the male participants was the level and extent of benefits to be paid to female survivors and their children. Under Meredith's proposal, contained within his Final Report (one fiercely contested by the Canadian Manufacturers' Association representative, Frank W. Wegenast), an injured workman would receive "compensation as long as the disability caused by the accident lasts." (16) In the event of a death, however, there was a question, posed again by Wegenast, of how long a widow should receive these payments. What should happen if she were to remarry, or worse, live with a man as a "common prostitute?" Was she to be entitled to lifetime benefits in such cases?

Meredith's draft bill, and the WCA itself, contained clauses allocating benefits to widows for their lifetimes or until they legally remarried, while children of deceased workers were to receive monthly payments until they reached the age of sixteen. Importantly, in the only clause where working women were made explicitly visible--a clause that was in keeping with gendered notion of the able-bodied, working class, masculine breadwinner (17)--husbands of women workers killed on the job were to receive benefits, only if it was determined that they were "invalids" or "physically or mentally incapable of earning." (18) Male workers were thus understood to have a stable and lifelong attachment to the labour market that was legitimately broken only when they were physically and/or mentally unable to work. Women's attachment to their jobs was to last until they were married and/or when they remarried--at which point, as stated above, their benefits would be terminated. While one can readily posit that this change in benefit status was not what these women desired, the same cannot be said for Meredith and each royal commission participant. In one session, Mr. Hinsdale from the state of Washington's workmen's compensation board, provided Meredith with information relating to benefits to widows who, he stated, on average were expected to live until they were 65 years of age. In calculating the costs associated with these benefits, Hinsdale reported that the "question of widows remarrying is an important one; a great many do remarry. ..." Upon hearing that in one year of operation, two out of 243 widows had remarried, thus allowing the Washington workmen's compensation board to terminate their benefits, Meredith asked: "Do you find the oldest and ugliest marry first?" (19)

The payment of benefits to survivors also had a racialized/gendered dimension. In keeping with the dominant discourse regarding the undesirability/ inferiority of male workers from eastern and southern Europe, questions were raised by witnesses before Meredith's Royal Commission as to the utility of paying their dependents and survivors full compensation in the event of injury and/or death. Mr. G. A. Kingston, a counselor for the Union Trust Company of Toronto, replied to Meredith's query asking why an injured worker would stay in bed …

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Publication information: Article title: From Invisibility to Equality? Women Workers and the Gendering of Workers' Compensation in Ontario, 1900-2005. Contributors: Storey, Robert - Author. Journal title: Labour/Le Travail. Issue: 64 Publication date: Fall 2009. Page number: 75+. © 2009 Canadian Committee on Labour History. COPYRIGHT 2009 Gale Group.

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