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Gender Parady

There has long been legislation prohibiting discrimination based on gender in the Ontario Human Rights Code and provisions in the Employment Standards Act mandating equal pay for work of equal value. 
 
The fact is, those provisions alone have not succeeded in removing this blight.  The question is, will this new legislation do the trick? 
 
Section 4 tells us that employers will not be allowed to seek compensation history from an applicant That does not mean that the applicant can’t volunteer the information if they want.  These provisions make sense.  If we are going to move away from women being systemically underpaid for their work, the last thing we should be referencing when offering them employment is their compensation at the last job where they were underpaid.  It leaves unanswered the question of whether, if a candidate volunteers what they are presently getting paid at the job they want to leave, you can ask them for proof by the way of a paystub.   Would you be violating the part prohibiting asking about compensation history even though they volunteered the information?  This criticism is a small one.  Most employers do not start out a new relationship by implying they don’t believe the candidate.
 
Section 5 indicates that every employer who advertises a job must include the expected compensation for the position or a range of compensation. 
 
Clearly, this section is intended to counteract any tendencies to offer a woman less than the employer was really willing to pay to get the job done.
 
For people not in a union, the marketplace for jobs has always been a free market model.  It’s like buying a house.  One tends to pay the least one can to get the thing one wants.  Houses sell often below their listing price and above their listing price.  It depends what the market will bear.  Nothing in this legislation, would stop an employer from advertising a position with a range but then actually offering more or less: “you don’t really have the experience or background I was seeking  for this position and there will be significant training involved.  I’m prepared to offer you the job at $10,000.00 less than the posted salary”.  To be fair to the legislation, it is probably not possible to do much more than it has. 
 
In a good economy, employers will want to post a reasonable salary range to attract the candidates they need.  In times of high unemployment, they need not worry about it as much.  At least with this new legislation, there is a bit of a hurdle if an employer tries to offer a woman, or anyone, less than what they posted.  Not, however, an insurmountable one, unfortunately. 
 
Section 7 prohibits employers from intimidating, dismissing or otherwise penalizing an employee for challenging their compensation, disclosing it to another employee or asking about the employer’s pay transparency report and its compliance with the law. 
 
Over the last 25 years, there have been many occasions where there have been women sitting in my office who have told me that they strongly suspect they are being paid less than their male counterparts.  The problem is that they rarely know for sure.  Many employers will discipline an employee for sharing their compensation rate.  Up until now, that has been quite legal as long as there is an established policy.  If this legislation passes, those policies will be defunct.  If this provision helps information flow more freely, employers who have a conscious or subconscious tendency to put a thumb on the scale for their male employees will have to sit up and pay attention.
 
Nothing in this legislation or the statutes I refer to at the beginning of this article mean that particular men and women have to be paid exactly the same.  If there are legitimate distinguishing factors like seniority, experience, education or job performance, employees can be paid differently regardless of their gender.  It is effectively up to the employer to prove that those distinguishing factors are real and documented. 
 
Lastly, the proposed legislation calls for “transparency” reports which need to be filed with respect to gender and pay information for the government itself immediately, some time later employers with 500 employees or more and even later than that, 250 employees or more.
 
I don’t have the numbers at hand but other than the big institutional employers, there are not an awful lot of 250 people companies in the Hamilton area. 
 
It may be that the liberals were a little shy about reducing the threshold for the reports because of the backlash from their minimum wage increases.
 
The legislation has laudable goals.  The new responsibilities and prohibitions enforced on employers don’t seem that onerous to me.  Hopefully this legislation will help the pendulum swing towards a better place.
 
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can read his articles on the Hamilton Spectator website.
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com