Exploring legal options for pay-equity complaints
By AdvocateDaily.com Staff
Comparators are key to pay-equity claims, says Toronto employment lawyer Bram Lecker.
Lecker, principal of Lecker & Associates, explains that Ontario’s Pay Equity Act, passed in the 1980s, requires all public and private sector employers with more than 10 employees to eliminate wage discrimination on the basis of sex.
Despite that, research studies have consistently found women are paid less than men in this country. For example, Statistics Canada recently calculated that full-time working men earn 26 per cent more than their female counterparts.
Even after controlling for gender differences in factors such as sector of employment, education and union status, the agency found an eight-per-cent differential persisted in favour of men.
Lecker says the reasons for the gap are complex and highly contested by academics. But when it comes to a pay-equity complaint by a woman who thinks she is paid less than a man in the same workplace, things can be a bit more straightforward.
“The key word is comparators because when you’re dealing with a pay-equity issue, you have to look at the job descriptions that the man and woman are undertaking,” he tells AdvocateDaily.com.
“It might be that two jobs have evolved to the point where equal functionality and accountability have been established. But that’s no excuse for the woman to be paid less, and human rights commissions and courts can order back pay and sometimes punitive or exemplary damages.
“As long as the job is the same, it’s easy to make the case that they have to be paid the same,” Lecker says.
Still, the parallels between the jobs held by men and women employed by the same entity don’t have to be perfect in order to support a complaint, he says.
“If you’ve got two mid-level managers who are dealing with completely different subject matter, but they’ve got the same number of people reporting to them, then that’s still a good comparator.
“If one has signing authority allowing them to sign cheques on behalf of the company up to $5,000 and the other has authority within 15 per cent of that amount, that’s also a situation where they should be paid the same.”
Further action may be needed from government to close the gender pay gap and reduce the need for individual complaints, says Lecker, who points to Ontario’s Pay Transparency Act, passed at Queen’s Park in the dying days of the previous Liberal administration.
But the implementation of the Act, which would prohibit employers from asking candidates about previous wages and require salary or wage-range disclosure on public job postings, has been put on pause by Premier Doug Ford’s government.