EI and discrimination against women: Liberals’ obstinacy forces a return to the courts

By Manuel Johnson  

Since 2018, six women workers in Quebec have been waging a court battle against discrimination against women in the Employment Insurance system. They are supported and accompanied by the Mouvement Action-Chômage de Montréal. The discrimination concerns the qualifying period used to determine eligibility for EI benefits.

The eligibility threshold varies between 420 and 700 hours worked, depending on the regional unemployment rate. This means that, to be eligible for benefits, a person must have worked between 420 and 700 hours in the 52 weeks preceding the EI claim.

However, maternity leave benefits are counted as EI benefits, and are calculated within the limit of 50 weeks of benefits. What’s more, maternity is not one of the conditions for extending the qualifying period.

The scheme clearly penalizes women who give birth. On the one hand, when they are on maternity leave, they are not working so cannot accumulate the necessary 420-700 hours. At the same time, their time on maternity leave is deducted from their EI benefits, which are limited to 50 weeks (if they are entitled to benefits at all).

In 2022, these women won a victory before the Social Security Tribunal, which ruled that the 50-week benefit limit constitutes gender discrimination against women. The tribunal understood that this distinction perpetuates a historical disadvantage, namely women’s lower earnings, and this violation of women’s equality rights cannot be justified in a “free and democratic society.”

Shamefully, Justin Trudeau’s “feminist government” appealed this historic decision in 2022. Unfortunately, the tribunal’s Appeals Division ruled in the government’s favour on January 9, 2024, finding that the provisions of the Employment Insurance Act penalizing women were not discriminatory.

The six women refused to give up and, still supported by the women’s and labour movements, have just filed an application for judicial review before the Federal Court of Appeal.

Why does the federal government insist on denying working women full equality in terms of EI? Quite simply, if EI is too “generous”, it can reduce the size of the reserve army of unemployed women workers and damage employers’ bargaining power. Full equality in Employment Insurance would reduce the rate of exploitation of women, and this is unacceptable to a capitalist government.

This case also illustrates that legal struggles are susceptible to the balance of political power.

We might think that court victories are the result of lawyers’ brilliant arguments – but this is the Hollywood version of justice. In the real courts, as in other spheres of society, it’s not heroic individuals who win the day.

We win legal cases when we can mobilize sufficient resources to hire lawyers and pay the costs associated with appeals (bailiffs, jurisprudential research, the production of legal briefs, etc.)

Of course, the capitalist state and the employers can mobilize impressive resources to win their cases. Workers alone, without the strength and resources of the labour movement, are no match. This is why the legal arena ultimately favours the ruling class. What’s more, the Hollywood version of justice means that court victories won by the working class don’t necessarily contribute to a better balance of power for that class, as they are attributed to lawyers’ skillful arguments rather than to the mobilization of working-class resources.

That said, court cases can – to a limited extent – help expose the contradictions in the capitalist system. It is illusory to believe we can meaningfully advance the class struggle in the courts – but abandoning the judicial arena altogether, failing to defend ourselves in the face of the ruling class’s attacks, failing to use all available means to defend the interests of the working class, leads to deteriorated conditions for workers.

The judicial struggle should not be prioritized, as its emancipatory potential is limited. But if we put it into proper perspective – without illusions that the justice system in capitalist society is neutral and impartial – the legal struggle could is useful and even necessary.

[Photo: Cupe.ca]

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