Pay Equity Complaints | Author: Bram Lecker, Employment Lawyer
Over two decades ago, in 1987, Ontario passed the Pay Equity Act. It requires both public and private sector employers, with more than 10 employees, to eliminate gender-based wage discrimination. Undoubtedly, this cleared the pathway for women to bring pay equity complaints forward without fear of reprisal.
Despite this, a gender wage gap exists in Canada. Various studies, including some from Statistics Canada, stubbornly peg the disparity between 25% and 30% in favour of men. The reasons for it are complex and highly contested by academics. But one issue remains clear. Employers cannot perpetuate discriminatory payroll practices in Ontario based on gender because the evaluation process remains starkly simple.
Pay Equity Complaints: The Job Description
When dealing with pay equity complaints, the first set of documents lawyers will compare are the job descriptions. Often, complaints of this nature arise because a woman started out in a junior position. She received the cost of living increases over time which did not mirror the pace of how the job evolved. As she took on more responsibilities, she found herself with equal functionality and accountability as a male counterpart. Only, she performed the same job at lower pay.
Trailing pay increases are no excuse for employers to pay women less. The law demands equal pay for equal work at the same organization. Human rights commissions and courts have ordered back pay in these circumstances. Sometimes, they have supplemented it with punitive or exemplary damages to curb the practice. The claimant’s case will remain strong and straightforward as long as the job description is the same.
Comparing Similar Jobs
However, claimants do not have to present perfect parallels in job descriptions to support a pay equity complaint. The Pay Equity Commission compares jobs based on four values: skill, effort, responsibility and working conditions.
For example, if a business employs two mid-level managers in separate departments and both have the same number of people reporting to them, one could make a case for equal pay. Similarly, if your colleague has the authority to sign cheques up to $5,000 and you have similar permission within 15%, arguably your remuneration packages should be very close to each others.
Gender-Based Comparators
Labour markets segregate jobs along gender lines, where male jobs remain better paid than female jobs. In a strong attempt to stamp out discriminatory practices that have historically fed the gender wage gap, Ontario’s Pay Equity legislation facilitates job comparisons across genders by placing the focus on the value of the job function to the organization.
For example, an experienced lawyer can calculate the value of the work performed by lower-paid female cleaners to that of their higher-paid male counterparts in waste management, at the same organization.
The arguments can sometimes get tricky. Some employers might defend a pay disparity between two people by arguing “market factors”, that one was hired at a time when market demand or skill sets were lower than it is now. A strongly developed case based on job value would render the argument impotent. Indeed, anyone performing the job at a lower rate would need to be moved up to reflect present-day value.
Filing a Pay Equity Complaint
Anyone can file a pay equity complaint at the Pay Equity Commission of Ontario. Retaining a lawyer is not compulsory for these proceedings. However, your employer will, in all likelihood, hire a legal firm to defend themselves. Accordingly, we highly recommend you proceed with equal representation for yourself to improve your chances of success.
A lawyer can also help you determine whether you have a strong case to present, in the first place. Indeed, employers have legitimate reasons to justify different pay for equal work. These include seniority, merit, quantity or quality of work, qualifications etc. The courts will require proof from your employer, and not just an explanation, to demonstrate why your pay disparity exists and whether it is really for reasons other than your gender.
Ontario’s Pay Transparency Act
March 31, 2020, is Equal Pay Day in Ontario. It symbolizes extra days women have to work into the new year to earn what men made in 2019. This date differs each year and signifies the gender wage gap in a tangible format.
To that end, Ontario’s former Liberal government introduced an enhancement to the Pay Equity Act in the dying days of their administration. The Pay Transparency Act would have prohibited employers from asking candidates about previous wages and required compensation disclosures on all public job postings. It would have progressed efforts to narrow the wage gaps based on gender as well as racial lines.
However, for reasons only known to Premier Doug Ford, his Conservative government put this valuable piece of legislation on hold, indefinitely. No doubt the business lobby played a very large role in this decision. Consequently, the Pay Equity Commission continues to field pay equity complaints from individuals, clogging up the courts with cases that could take “up to 2 years to resolve“, according to information published on their website.
About The Author
Bram Lecker is the principal of Lecker & Associates and one of the most experienced employment lawyers in Ontario with over 35 years of experience, primarily representing employees.
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