Chapter 6 (Pay Equity) - Tagged

Chapter 6: Equity, Diversity, and Inclusion

Introduction

1. Adverse Effect and Direct Discrimination: Understanding discrimination is essential for addressing inequalities in the workplace. Both adverse effect discrimination and direct discrimination can typically be approached through the complaint-based systems established by the Human Rights Tribunal of Ontario (HRTO). This mechanism allows individuals who experience discrimination to lodge complaints and seek remedies.

2. Systemic Discrimination: Unlike the other forms of discrimination, systemic discrimination presents unique challenges as barriers to employment related to protected grounds may not be overt or easily identifiable. An example of systemic discrimination can be observed in organizations where statistical data may show a significant underrepresentation of racialized individuals in senior positions, despite the absence of visible barriers to hiring or promotion.

3. Government Response: In recognition of these issues, the government has implemented various laws aimed explicitly at addressing systemic discrimination and the barriers it presents to fostering an inclusive and effective workplace culture.

Ontario Human Rights Code and Systemic Discrimination

1. Individual Complaint-Based Process: The Ontario human rights framework primarily functions on an individual complaint basis, providing redress typically to one or a small group of individuals suffering from discrimination.

2. Effectiveness of Human Rights Complaints: There are instances where human rights complaints have successfully tackled systemic discrimination, evidencing the potential of individual claims to influence broader change.

3. Case Example - Association of Ontario Midwives vs. Ontario (Health and Long-Term Care):

   • Background: The Association of Ontario Midwives filed a complaint on behalf of over 800 midwives alleging systemic gender discrimination linked to compensation disparities.

   • Ruling: The tribunal sided with the Association, noting that the majority of midwives were women, a protected group under the Human Rights Code, and that they had faced unfair compensation practices after the Ministry abandoned established wage-setting principles meant to protect against gender discrimination in pay.

   • Remedy: The Tribunal required the Ministry to restore lost compensation benchmarks and grant a 20% wage adjustment retroactive to 2011 for eligible midwives, alongside awarding $7,500 in damages to each eligible midwife for injury to dignity and self-respect.

4. Mandate of the Ontario Human Rights Commission: It focuses on addressing systemic discrimination through three primary components:

   • a. Numerical Data: Used as a potential red flag rather than conclusive proof of discrimination.

   • b. Existence of Barrier-Creating Policies: The role of policies that may contribute to systemic barriers, especially if they are highly discretionary.

   • c. Organizational Culture: Concerned with traditions in workplace practices that ignore the impact on protected groups.

5. Special Programs (Section 24 of the Code): This section allows for special programs designed to assist disadvantaged groups in achieving equal opportunities.

Relevant Laws

1. Employment Standards Act (ESA): This provincial law mandates equal pay for equal work between men and women who are performing substantially similar roles within the same establishment.

2. Pay Equity Act (PEA): This provincial legislation aims to combat the under-valuation of positions historically filled by women, based on a proactive compliance model.

3. Employment Equity Act (EEA): A federal statute that compels federally regulated organizations to implement employment equity initiatives, including affirmative action programs.

4. Ontario’s Accessibility for Ontarians with Disabilities Act (AODA): This statute aims for full accessibility for disabled persons by 2025 through phased implementation of accessibility standards within both public and private sectors, emphasizing a proactive approach:

   • a. General Requirements: Require organizations to train staff on accessibility standards and consider accessibility in all operational areas, including self-service kiosks.

   • b. Specific Requirements: Focused on five key areas (customer service, information and communications, employment, transportation, and design of public spaces) to ensure safety and accessibility.

5. Responsibilities of Federally Regulated Employers under EEA:

   • a. Remove barriers for underrepresented groups.

   • b. Ensure appropriate representation of these groups in the workforce.

   • c. Collect and analyze data relevant to these groups and report findings annually to the federal government.

   • d. Maintain salary data and notify about pay gaps between designated and non-designated groups.

Other Significant Points about Pay Equity and Employment Equity

1. Compliance with EEA in Provincial Contracts: A federal contractor program mandates provincially regulated companies with a work contract value of $1M or more and over 100 employees to implement employment equity measures.

2. Provincial Law Limitations: While provincial laws do not explicitly cover employment equity, many organizations within Canada have fostered inclusive practices independent of governmental mandates.

3. Bill 148 Revisions: Amendments aimed to prohibit pay difference based on employment status were repealed by the current government.

4. Broader Implications of EEA: It addresses the under-representation of minority groups in various employment sectors, especially in high-paying roles.

5. Establishing Employment Goals: EEA mandates the creation of both short and long-term goals to rectify representation disparities.

6. Reasonable Efforts: EEA requires employers to genuinely strive towards their employment equity goals without incurring undue hardship or compromising on the qualifications of candidates.

7. Record Keeping: Essential for maintaining employment equity records, retention must last for three years post-relevant employment action.

Ontario ESA: Equal Pay for Equal Work Between Men and Women

1. Legal Framework: Section 42 establishes a three-part legal test to validate pay equity claims:

   • Requirement 1: Show that male and female employees perform substantially the same work in the same establishment.

   • Requirement 2: Demonstrate that the job performance of each gender entails similar skill, effort, and responsibility.

   • Requirement 3: Confirm that both engagements occur under comparable working conditions.

2. Equitable Compensation: Employers must align the pay of the lower-paid gender to that of the higher-paid gender when the above criteria are satisfied, rendering the law beneficial for both genders.

3. Examples: Illustrative scenarios highlighting instances of equivalent work to disallow differential pay; positions of cooks or retail assistants earning disparate wages despite performing analogous roles.

4. Mens Rea Requirement: Not necessary to prove an employer's intent to discriminate under Section 42, as the law takes a more objective stance based on pay conditions.

Exceptions to Pay Equity Requirements under ESA

1. Seniorities or Productivity Levels: These components can create legitimate exceptions.

2. Other Factors: Pay disparities based on non-gender related criteria may also be considered acceptable.

3. Lodging Complaints: Both male and female employees are entitled to file complaints relating to equal pay legislation; actions can be taken through the Ministry of Labour or civil court.

(Ontario) Pay Equity Act: Principle of Equal Pay for Work of Equal Value

1. Core Principle: The Act requires a comparative approach to assess the equal value of jobs filled by both genders across organizations.

2. Employer Obligations: Public and private sector employers (10+ employees) must actively pursue equitable pay structures.

3. Applicability: Pertinent to all employment types - full-time, part-time, or seasonal roles.

4. Rationale: Aimed at rectifying historical job devaluation predominantly affecting females, stemming from societal negatives.

Key Features of the PEA

1. Primary Aim: To remedy systemic pay inequities affecting predominantly female job sectors.

2. Job Class Comparisons: Employers must categorize job classes by gender and evaluate their associated values.

3. Value Adjustments: When male and female roles of equal value are identified, adjustments must be made to align female job salaries with those of males.

4. Proactive Compliance: It necessitates an active approach towards assessing and correcting compensation injustices based on gender within the same workplace.

Applicability and Scope of PEA

1. Ten-Employee Threshold: PEA comes into play once an organization hires its tenth employee.

2. Phase-In Period: Directed for those organizations operational before the Act's enactment, catering to gradual compliance.

3. Immediacy for New Employers: Employers established post-1987 must comply without a phase-in grace period.

Exceptions to the Pay Equity under the PEA

1. Gender Neutral Systems: Specific seniority systems do not violate the Act.

2. Temporary Assignments and Merit-Based Pay: These can justify pay disparities provided they adhere to the PEA criteria.

3. Collective Bargaining Differences: Variations arising from negotiations are allowable exceptions under the Act.

Other Points of Significance about the PEA

1. Job Classification: A threshold of incumbency determines whether a job is male or female-dominated.

2. Consideration of Historical Gender Roles: Employers assess job performances relative to traditional gender alignments.

3. Retroactive Claims: Pay equity claims can date as far back as 1988 for qualifying employers.

4. Maintaining Pay Equity: Changes to job duties necessitate re-evaluating compensation levels to ensure ongoing adherence to pay equity standards.

5. Employee Benefits Compliance: Pay equity laws extend to employee benefit plans, ensuring fair treatment in this regard.