The size of an employee’s salary is often seen as an indicator of importance within an organization. Thus, when women are paid less than their male counterparts for performing similar work, it suggests that their efforts are somehow of lesser value. In Ontario, we have a number of legal mechanisms that are designed to reduce gender-based wage disparity, however, it remains a reality in far too many workplaces.
In early 2018, Maclean’s published an article stating that in Canada:
- Working women earn 31% less than working men;
- When adjusted for working the same number of hours, women earn 13% less then their male counterparts; and
- When controlling for gender differences across industries, occupation, education, age, job tenure, province of residence, marital status and union status, working women earn 8% less than men.
The Boston Symphony Case
A recent lawsuit in the US has recently highlighted the issue of equal pay for equal work. In July 2018, Elizabeth Rowe, principal flautist for the Boston Symphony Orchestra (“BSO”), filed a gender discrimination lawsuit against her employer claiming $200,000 in back wages as she is paid approximately $70,000 per year less than the BSO’s principal oboist. Essentially, Rowe claims that she should receive an equal salary to the principal oboist, and the sole reason for the discrepancy in pay is her gender.
In its defence, the BSO has denied Rowe’s allegation and has sought to defend its pay structure. The BSO has asserted that the oboe is far more difficult than the flute to play. As a result, there is a smaller pool of competent oboists than flautists, which in turn drives up market price.
While this case has yet to be decided (and as of December 2018, the parties were headed to mediation), it draws attention to an issue facing most jurisdictions in the US and Canada – an ongoing and noticeable inequality in pay between men and women.
Gender Pay Equality in Ontario
In Ontario, there are a number of legislative protections that seek to limit and prevent pay disparity between men and women:
- the Employment Standards Act, 2000 prohibits employers from paying an employee at a lesser rate on the basis of sex, when the individual performs substantially the same kind of work in the same establishment;
- the Human Rights Code further prohibits employers from paying an employee at a lower rate of pay as a result of their sex; and
- the Pay Equity Act seeks to eliminate systemic gender-based wage discrimination by ensuring equal pay for work performed by employees in “female job classes.” In practice, the Act requires that the wages of employees in a “female job class” are at least equal to the wages of employees in “male job classes” found to be comparable in value based on skill, effort, responsibility and working conditions.
The previous provincial government also put forward pay transparency legislation, designed to further address the wage gap between men and women in Ontario. This Act was set to come into force as of January 1, 2019. However, as of late 2018 the Ford government indefinitely delayed the date on which it will become law. If it should come into force, however, the Act will require, in part, that all publicly-advertised job postings include a salary rate or range; bar employers from asking questions about past compensation; and prohibit reprisal against employees who discuss or disclose their compensation.
In light of the preceding, Ontario employers are best-advised to review their operations and ensure that male and female employees are paid equally when performing equal work. Where differences in pay do exist between employees performing substantially-similar roles, it is important for the employer to demonstrate a legitimate basis for this discrepancy (i.e. seniority on a pay-band or merit-based pay increase tied to tangible metrics).
This article was originally published on January 18, 2019 on First Reference Talks.
Paul J. Willetts | Employment and Labour Lawyer
Vey Willetts LLP | Ottawa Employment & Labour Lawyers
275 Slater Street | Suite 900 | Ottawa, ON | K1P 5H9
t: 613.238.4430 | c: 613.315.1415 | f: 1.800.760.1865