“ Othering” refers to “viewing and treating a person or group of people as different from yourself and most people. Othering can lead to discrimination and prejudice against marginalized groups.”
In November 2021, I attended a Q&A session with Former Supreme Court Chief Justice Beverly McLachlin as part of an all-women lawyer's conference. What follows is a heavily paraphrased summary of one of the discussions, so I hope the former chief justice will indulge my summarizing her remarks.
Perhaps unsurprisingly, given the context, one of the questions asked was how we can marshal true equality between women and men in the law?How do we ensure that women are given equal opportunity to advance in the profession, to take leadership positions, and to enjoy both economic prosperity and hierarchical parity with our male colleagues? Her response was pragmatic: women will not achieve economic equality, in the legal profession or otherwise until there is legitimate sharing of childcare responsibilities. While women (and people capable of childbirth) still bear the greater burden of childcare, they will continue to suffer the corresponding economic inequities. This issue is systemic. It impacts women and child-bearing folks across most, if not all vocational sectors, and results in lower wages, lower attachment to the workforce, increased time away from employment, and reduced opportunities for advancement.
Inequity in Personal Injury Litigation Assessments
Unfortunately, working in personal injury litigation, I see this inequity being imposed on my female clients who are advancing claims for loss of future earning capacity.
When the court is assessing the value of the plaintiff's future wage loss, it asks: what would this plaintiff have done for work had the injury not occurred? What would their career path and earnings have looked like? In many cases, particularly for young Plaintiffs, the court relies on labour market data: amalgamated stats of all BC residents at each level of education and their corresponding average income levels, as a comparator for the Plaintiff. Essentially: what is the average income earning capacity for a BC female with the same level of education as the Plaintiff? How does that compare to the earning levels of the Plaintiff now that the injury has occurred?
But these stats are also gendered, and in using the female-based stats, it incorporates the fact that many women take more time away from the workforce to have and rear children, must prioritize childcare and domestic duties over work, and are thus afforded fewer opportunities for advancement with its correspondingly higher income levels. In this way, the law perpetuates the systemic inequality on women seeking compensation after an injury, regardless of their actual intentions for family planning. Because women, as an economic labour category, have reduced average income and attachment to the workforce, this individual woman – this plaintiff, who might be just at the outset of her career or education – is taken to have a lower potential level of income earning capacity against which we must judge her loss. It is taking societal inequality and baking it into the fabric of our jurisprudence, to the detriment of individual victims.
Fortunately, there has been recognition of this pattern in the case law, to the extent that judges have instead opted to apply male data and earning statistics when assessing the loss of future earnings for a female plaintiff. See, for example, the comments of Mr. Justice Willcock in Gill v. Lai, 2019 BCCA 103:
[52] The respondent's expert economist, Mr. Benning, used labour market statistics for males in British Columbia when making an allowance for the negative contingencies of part-time employment and non-participation in the workforce. The trial judge accepted this approach and rejected the submission of statistics for females that should be used. He did so for two reasons: factors specific to the respondent and a reluctance to use statistics that have the effect of perpetuating discrimination. He wrote:
[130] In adopting the male labour market approach, I note:
a) since a young age, the plaintiff has shown a particular adherence to the workforce and, in particular, the pharmacy profession;
b) the plaintiff values financial independence (she saved the funds for the down payment for the Cloverdale home while her future husband studied dentistry in Manitoba); and
c) the plaintiff's parents are in their mid-sixties and are still working.
[131] I am also reticent to give weight to female labour market contingencies which may have embedded discrimination: see Justice Morellato's discussion in Jamal v. Kemery-Higgins, 2017 BCSC 213 at paras. 96–99.
[53] The appellants say there was no evidence of any such embedded discrimination. They say Mr. Benning confirmed statistically females are more likely than males to work on a part-time basis and, the appellants say, “there was no suggestion in the evidence such difference arose because of any issues relating to discrimination”. The appellants argue the only evidence before the judge was female labour market contingencies accurately reflecting the real and substantial possibilities for the respondent.
[54] Judges can and do recognize income statistics may incorporate historic and inequitable gender-based pay differences and, as such, have increasingly taken a cautious approach to gender-based income statistics. In Crimeni v. Chandra, 2015 BCCA 131, this Court said:
[23] Experts are frequently asked to estimate income losses by using gender-specific historical income figures. Such figures may be useful where they can fairly be said to be the most accurate predictor of the lost stream of earnings. However, there is authority for the proposition that the use of female earning statistics may incorporate gender bias into the assessment of damages. There is also authority for taking judicial notice of convergence in gender incomes: Steinebach v. O'Brien, 2011 BCCA 302.
[24] It is certainly not an error, in my view, for a trial judge to recognize that the use of historical data can reflect such bias and, to the extent, the circumstances giving rise to the bias may be expected to diminish, to view the evidence as conservative.
[25] I can see no error in the judge's consideration of the plaintiff's pre‑injury earning potential.
[55] In my view, the same can be said of labour market contingencies. It is not an error to recognize that gender-based contingencies can incorporate bias. Having said that, we must bear in mind the quantification of damages necessitates an individual approach.
[56] In the case at the bar, the trial judge did not fail to deal with the parties before him. The respondent had borne children, made effective arrangements for childcare, participated on a full-time basis in the labour market, and was motivated to continue to participate full-time. It was certainly open to the trial judge to find she was unlikely to be affected by some of the contingencies reflected in female labour market statistics, and there was a reasonable basis upon which he could conclude the use of statistical evidence of contingencies affecting males in the labour market would result in a realistic prediction of the respondent's future. I would dismiss this ground of appeal.
“Not Like Other Women”
The issue, for me at least, is that this process – in which female plaintiffs have to assure the court that they are “not like other women,” that they would not take the average level of maternity leave, that they would not have sacrificed their career for the sake of raising children at all – perpetuates the wage gap by only offering Plaintiffs the solution of aligning with the other side of the binary. There is seemingly no room to be an “average woman” and also have a fulfilling, lucrative career. At its most reductive: you are either a woman, and subject to the inherent financial inequities that accompany that categorization, or you are a man.
My Conclusion
I recognize that individual plaintiffs cannot shoulder the burden of eliminating societal injustices in the course of seeking their own, individualized personal justice. However, I do believe that, as a profession, there is room to have a more nuanced discussion in our submissions, and ultimately in our decisions, to address gender bias rather than just sidestep it.
As always: there is more work to do.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
