Gender Implications of Wrongful Dismissal Judgments in Canada, 1994-2002 *
Rollings-Magnusson, Sandra, The Canadian Review of Sociology and Anthropology
THROUGH PROTESTS AND REASONING designed to influence state policies and cultural norms, women in Canada gained a degree of independence and power, both within and beyond the family, in the 20th century. (1) Where political and associated legal systems once supported the male-biassed status quo (Ursel, 1992), equality between the sexes has now been enshrined as an international treaty obligation, (2) a constitutional principle under the Canadian Charter of Rights and Freedoms (the "Charter") (3) and as an aspect of the law of each province. (4) Despite these successes, research confirms that biases continue to disadvantage some women in the workplace in terms of the types of jobs they obtain and the wages they earn (Statistics Canada, 2000). It has also been argued that the bias favouring men in the workplace is also active in areas peripheral to the job market, including the courts (Macfarlane, 1997). This study seeks to determine whether workplace bias has been incorporated into the legal system via three factors applied when assessing compensation for wrongful dismissal. This question is explored by examining the outcomes of legal cases and comparing the mean compensation received by men and women in various age, tenure and occupation categories, in order to determine whether differences exist.
In the workplace, the impact of male preference is clear. Although 69.8% of women participated in the employment market in 1999 (Statistics Canada, 2003) and 61.3% of all husband-and-wife families were dual-earners in 1997 (Statistics Canada, 2000), women are still seen as workers in the secondary labour market (Krahn and Lowe, 2002). They are largely found working in female job ghettos in which they occupy low-level, low-paying jobs that offer few benefits or opportunities for advancement (Armstrong and Armstrong, 1994), while men assume positions in the primary labour market. In 1999, this division of labour channeled 70% of all women into "traditional" female jobs in "teaching, nursing and related health occupations, clerical or other administrative positions, and sales and service occupations" (Statistics Canada, 2000: 107). Only 7.3% of women obtained non-traditional positions at the managerial level: 0.4% in senior management, 3.1% in business and finance, and 2.7% in engineering and other professions based on the natural sciences (Statistics Canada, 2000).
Women are also identified as "flexible" workers willing to accept nonstandard arrangements, useful in filling gaps in working schedules, increasing labour efficiency and reducing costs through their part-time employment schedules (Duffy and Pupo, 1992). (5) Researchers suggest that women are relegated to these positions due to the persistence of societal beliefs that their work role should conform to the idealized notion of women as subservient, nurturing caregivers (Eshleman and Wilson, 2001). McDaniel and Tepperman (2000: 231), for example, state that the "prevalence of the perception" that women are primarily responsible for performing necessary domestic labour and child care requires that they adjust their paid working schedules to accommodate these responsibilities. As such, women are often undervalued in the job market and the "proper" work roles assigned to them by cultural perceptions are in turn feminized or devalued (Boyd, 1997). (6)
As a result of their participation in undervalued, feminized occupations, women tend to earn less than men. For example, in 1997, women working full-time, full-year jobs earned only 73% of the male wage. This income gap existed across all occupations, including those seen as traditionally female. Thus, women earned 81.3% of the male wage in the teaching profession and 80.7% in clerical jobs. However, the widest differential was found in the medical/health care fields, where women earned only 56.8% of the full-time male wage. Women in management were slightly more successful at 65.5% (Statistics Canada, 2000). …