Howard Levitt: Bearing brunt of pandemic, women contend with bias, fewer job opportunities amid ‘child-rearing’ wage gap

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There is an omnipresent Sword of Damocles hanging over the heads of women and, with it, the Canadian economy.

Maternity leave was first introduced in Canada in 1971 at the federal level, with various provinces and territories following suit. With that, the problem of allowing female employees time off to give birth and take care of children while maintaining their job security and career momentum was supposed to be resolved.

Of course, anyone paying attention knows that’s not the case. There remains a child-rearing wage gap, (not, notably, a gender gap per se), in pay and career success for women compared to men. Studies show a sharp drop in women’s salaries and wage growth after the birth of their first child. No comparable drop exists for men. There are obvious consequences to taking maternity leave which helps explain the drop, such as breaking contact with important clients and missed opportunities for raises and promotions. Like working remotely, out of sight is often out of mind, with respect to the opportunities that come from simply being available and in the employer’s consciousness. There are also more subtle, insidious consequences, such as the incorrect perception by some that such women are insufficiently dedicated to their employer and career.

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The worst case is the loss of employment altogether, coupled with increased difficulty in finding a new position and being saddled with increased responsibilities at home. Such dismissals have become more frequent during the pandemic as it is concealed by general layoffs.

It is increasingly common for my office to be contacted by women faced with a sudden and startling demotion after returning from maternity leave. Perhaps our firm’s new female focus helps with that. This is not just anecdotal — in a survey cited by Forbes magazine, over twenty per cent of women report being paid less for doing the same work after returning from raising their young children. A Royal Bank of Canada report substantiates earnings losses over the years following childbirth as well.

Just as often, we are contacted by recently terminated female employees whose jobs were mysteriously swallowed through restructuring.

There is an array of legal protections meant to remedy this. For example, in Ontario, employers are required by the Employment Standards Act to reinstate an employee to the position they most recently held if it still exists, or to a comparable one if it does not. Naturally, whether a position is truly “comparable” in terms of duties, authority, and salary can be a matter of judgment. Pitched battles are regularly fought between lawyers as to whether such a titular reinstatement constitutes a constructive dismissal.

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Human rights legislation protects women against discrimination on the basis of sex, gender and family status. This creates another obligation on employers to accommodate employees’ need to take care of their children up to the point where the accommodation creates excessive hardship on the company. Once again, such “undue hardship” is not a bright, easily ascertainable line. The current shortage of available daycare options and the health risk of adopting whatever daycare options are available make accommodation particularly challenging.

More battles are yet to come, but the law requires employers to permit the caregivers of young children to remain home when school or daycare is unavailable or if their child is unwell and cannot attend. It will surprise no one to learn that many employers avoid hiring women for just these reasons. There is legal recourse if that can be proven, and even an order to hire the female applicant. But proof is often difficult to establish.

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It’s not as though courts are unsympathetic to the plight of pregnant women. In a recent case, Sarah Nahum, Director of People and Culture at Honeycomb Hospitality Inc., 28 years old and five months pregnant, was terminated without cause after only four-and-a-half months of service. Normally a young employee with such short service would receive a fairly slim severance package, but Justice Akbarali awarded her five months of salary, largely on the basis that her pregnancy was likely to negatively impact her ability to find alternative employment.

Are some women choosing not to have children as a consequence of these problems? Values are shifting under our feet with respect to expectations that women will bear children, with so-called DINKs (Double-Income No Kids) on the rise. A Harvard Business Review report shows that 33 per cent of successful U.S. professional women (such as business executives, doctors, lawyers and academics) between the ages of 41-55 are childless. The problem is that many of these career-focused women who have do not have children report high levels of dissatisfaction with this “creeping non-choice,” according to a study reported in HBR by Sylvia Anne Hewlett. Raising children is an obvious social good, not just a personal one, so the need to enhance maternity leave and close the wage gap remain.

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Barriers to legal remedies are various, such as the prohibitive cost of legal assistance for lower-income mothers, the lack of awareness of legal rights, and the perception that taking a hard tack with an employer may burn a bridge necessary to obtaining future employment.

Attitude shifts are as vital as legal remedies to achieving workforce equality. Among mothers thinking about downshifting or leaving employment, a majority cite child-care responsibilities as the primary reason, according to McKinsey & Co.’s ‘Women in the Workplace 2020’ report.

Implicit biases continue to be a problem, though. Penalizing mothers for taking advantage of flexible work options and negative perceptions of employees who have children playing in the background during Zoom calls are two examples cited in the McKinsey report. As noted in my recent column, employers now largely see their employees solely through a camera lens. This indirect experience of an employee can leave greater room for bias to slip in. Anti-bias training can assist, but it is often conducted by those with ideological axes to grind irrelevant to the real issue. Such activists create tensions rather than ameliorate them.

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Another piece of the puzzle is government policy to support companies that are accommodative of employees that have children. More generous employment insurance for women on maternity leave and affordable child care reduce the financial disincentive to raise children without direct cost to employers. But there are, of course, costs to that for an economy whose deficit is already in free fall.

It’s not all bad news on the gender equality front. Over the past few decades, the wage gap has diminished, women have overtaken men in college attendance and degrees, and a higher percentage of women are now their family’s main breadwinner. But taking care of their children continues to be a major challenge to women’s success and to the Canadian economy — one that must be eliminated. There is a persistent but now very minimal wage gap between men and women. It is the child-care wage gap which public policy must now focus on and address.

Got a question about employment law during COVID-19? Write to Howard at [email protected].

Howard Levitt is senior partner of LSCS Law, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.