Pay equity, commonly referred to, and sometimes mistaken, as “equal pay for equal work” is protected in Ontario by three statutes:
- Employment Standards Act, 2000
- Human Rights Code
- Pay Equity Act, 1990
Employment Standards Act
Ontario’s Employment Standards Act, 2000 (ESA) protects employees from being paid a lower rate than another employee, on the basis of sex, when both employees perform substantially the same kind of work in the same organization.
Comparable jobs must have the same skill, effort, and responsibility, as well as be performed under similar working conditions. All of these conditions must be met in order to enforce equal pay for equal work, aside from certain exceptions listed below.
This means that an employee does not necessarily have to perform the exact same job as the comparable employee. For example, if a female’s job description is not the same as their male counterpart’s description or they work with different products, but yet they perform similar tasks with those products, that will still be considered substantially similar.
When comparing skills, this will include education, training, experience, and ability. The same effort will usually be either the same physical effort (e.g. strength) or mental effort (e.g. thought processes) required to do the job.
Example One: Jill and Jack both work at a bakery shop with their manager Jim. Both Jack and Jill have a culinary background from the same college. Jill bakes pies and Jack bakes cakes. Although they make different baked goods, their jobs are substantially similar. Jim, on the other hand, manages the bake shop and is responsible for the accounting of the store. Jill does not have a substantially similar job as Jim.
Example Two: Jill and Jack both have undergraduate degrees in history and work at a popular museum in Toronto. Both give tours in the museum, help with the collection of art for the new exhibits, and help the marketing team advertise the new exhibits. Jill handles the “current day” exhibits, while Jack handles the “historical” exhibits. Bob has all the same responsibilities as Jack and Jill, but he also has a Masters in Ancient History and supervises a group of 10 employees. Jill does not have a substantially similar job as Bob, but does have a substantially similar job to Jack.
Similar working conditions would be the setting the employee works (e.g. inside/outside and exposure to certain elements). For example, if both employees work outdoors in a certain type of environment, such as dense forests in Northern Ontario, that would be considered a similar working condition.
Exceptions
There are three exceptions where employees can be paid different rates of pay, even if they have substantially similar work:
- A seniority system
- A merit system
- A system that considers production quantity or quality
Sometimes it is difficult to decipher if your employer is making excuses that they believe to be legal, but are truly not in compliance with the ESA. If you believe your employer is paying you less than what you are entitled to under pay equity laws, contact our firm.
Human Rights Code
Ontario’s Human Rights Code protects employees from discrimination in the workplace. There are 17 protected grounds, one being sex. If a situation arises where a female employee believes she is getting paid less than her male counterpart, or vice versa, this may be discrimination based on sex.
If you believe you have experienced discrimination in your workplace, let our firm get you the human rights damages you deserve!
Pay Equity Act
The Pay Equity Act is slightly different than the protections provided for in the ESA. Specifically, the Act ensures employers pay women and men equal pay for work of equal value. Meaning, both genders must receive equal pay for jobs that may be very different but are equal or comparable value to the organization.
For example, while the ESA protects employees performing substantially similar jobs, the Pay Equity Act compares the pay for jobs historically done by women in an organization with the pay for the different jobs usually done by men.
For example, a social worker (a job usually held by women) would be compared to a construction worker (a job usually held by men) in the same company. Therefore, the purpose of the Act is to correct systemic discrimination displayed in female job categories.
Essentially, the Act’s purpose is to close the part of the wage gap that is due to historical differences between men and women in terms of education, work, and family responsibilities. Therefore, according to the Act, all employees in undervalued female job classes will receive “pay equity wage adjustments”.
Call us today for a consult to determine if you are getting the pay you deserve!
