It’s 2016!: Equal Pay for Women

Thanks in part to famous women like Jennifer Lawrence and Emma Watson the issue of equal pay for women has gained renewed traction. It is 2016, after all!

Of course, women and their allies have been pushing for equal pay for equal work for a long time. Unfortunately, many women continue make less than their male counterparts whether due to blatant discrimination or because old stereotypes and expectations continue to have an impact on women at work.

What are your rights?

If you think you are being paid less because you’re a woman or because you do a job that has been traditionally done by a woman, you may have recourse to the Human Rights Tribunal, the Ministry of Labour, the Pay Equity Commission – or even to the courts! While the law prohibits discrimination on the basis of sex in Ontario, somewhat different rules apply depending on where you work.

The Ontario Human Rights Code makes it illegal for an employer to discriminate against an employee or job candidate on the basis of sex. In other words, it’s against the law for some one to refuse to hire you because you are a woman or to pay you less because you are a woman.

Similarly, the Ontario Employment Standards Act provides for “equal pay for equal work”. An employer can’t pay a woman less than a man who is performing work that is substantially the same in terms of skills, efforts and responsibility. However, even this rule is subject to conditions. It only applies if the man and the woman are working under “similar working conditions” and in the same “establishment”. Of course, a man can still be paid more than a woman if he has more seniority, employees are paid on the basis of an objective measurement of their merit, pay is linked to production or for some other non-sex-based reason.

Another piece of legislation, the Pay Equity Act, remedies some of the unfairness that would be caused if women could only turn to the Human Rights Tribunal or the equal pay rule for help. The Pay Equity Act is based on the principal of “equal pay for work of equal value”, which is a broader concept than “equal pay for equal work”. This broader approach lets the law take into account the fact that certain work has been traditionally performed by women and has been historically underpaid, but has the same value as certain other work traditionally performed by men. The Pay Equity compares “female class jobs” (think: nurses, social workers) with “male class jobs” (think: engineers, technicians) to determine which jobs are of “equal value” and should be equally compensated. Unfortunately, while the Pay Equity Act probably helps you if you are a public sector employee in Ontario, it does not apply to smaller, private sector employers. It also doesn’t apply to private sector workplaces where everyone works in male job classes or female job classes. This means that if your employer only employs nurses, pay equity does not apply because there is no male job class at your workplace that your wages could be compared to.

In addition to legislation, your employment contract, collective agreement or employer’s rules and policies may provide you with other rights or access to programs designed to address the gender pay gap.

There are important exceptions to the rules against sex discrimination, though. Special interest organizations may discriminate on the basis of sex –or other grounds- in hiring if sex is a real requirement based on the nature of the work. Individuals hiring some one to provide them or a family member with personal care can also refuse to hire some one on the basis of their sex. At the same time, “affirmative action” is legal under the Human Rights Code: this means that an employer can treat employees differently on the basis of sex if they are implementing a special program designed to help disadvantaged persons or groups achieve equality.

This blog is for educational and informational purposes only and does not constitute legal advice. If you would like legal advice or have questions about your particular workplace problems please contact a lawyer. Our lawyers’ information is available on our Contact Us page.

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