It’s the top salaries of comparable classes of jobs that matter, not how long it takes to get there
Two Ontario employers are permitted to have employees in a mostly male job class advance up the pay scale more quickly than those in a female job class, as long as the top salaries are equal once they get there, the Ontario Divisional Court has ruled.
Lakeridge Health Corporation, an organization that runs several Ontario hospitals, had a unit of clerical employees who were mostly female, while its service employees were mostly male. As part of a pay equity evaluation, various job classes in the clerical unit were deemed to be comparable to those in the service unit and, under pay equity legislation, were required to have equal job rates.
Longer for female job class to reach top pay rate
Each job class had a wage grid, where employees would work their way to pay increases according to their length of service. In the male-dominated service unit, employees could make their way to the top wage rate after nine months of service. In the female-dominated clerical unit, employees couldn’t reach the maximum pay until they had been working for 24 months.
The union challenged this pay structure, arguing that pay equity required Lakeridge to change the clerical unit’s wage grid to eliminate the inequality between the length of time it took employees to reach the top wage. The existing grid resulted in unequal pay for jobs of equal value for employees under the maximum wage. For example, a health records clerk would earn almost $4,000 less than a storekeeper helper over their first two years of employment, said the union.
The Pay Equity Hearings Tribunal rejected the union’s claim, finding Ontario’s Pay Equity Act determined that pay equity was achieved by adjusting job rates – which referred to the highest rate of pay. The act acknowledged that job classes could have more than one rate of pay and therefore specifically referred to job rates, not compensation schedules or wage grids, said the tribunal.
Differences in school board’s wage grids
The York Region District School Board faced a similar challenge from its union. The board had a unit of clerical and technical employees who were mostly female and a custodial unit of mostly male workers. The clerical employees were subject to a four-step wage grid that allowed employees to reach the maximum job rate in three years. The custodial employees had a three-step grid that allowed them to reach the maximum rate in one year.
The union pushed for the school board to compress the clerical employees’ wage grid to match that of the custodial employees, but was unsuccessful. It finally took the issue, along with a claim that the Pay Equity Act’s failure to address wage grid discrepancies constituted discrimination on the basis of sex, to the tribunal.
The tribunal reiterated its Lakeridge position, finding that as long as the top wage rate for the clerical and custodial units was equal, then some variances in their paths to get there were acceptable. It also rejected the discrimination complaint, stating that the Pay Equity Act provided a “complete scheme for ascertaining the presence of gender discrimination in employment compensation, and directing how compensation must be adjusted in the establishments where such discrimination exists.” Since the school board’s wage grids met pay equity requirements, there was no discrimination, said the tribunal.
The unions took their cases to the Divisional Court, arguing the Pay Equity Act was supposed to eliminate gender discrimination in compensation.
The court disagreed with the unions’ stance that the purpose of the act was to do away with discrimination in compensation. Instead, said the court, the act was meant to “redress” systemic wage discrimination according to a certain scheme.
“The act does not contemplate the elimination of all discrepancies between comparably-valued male and female job classes,” said the court. “For example, where there are two comparable male job classes, the required adjustment to the female job rate is to the male job class that is paid less… The (act) is not designed to eliminate all gender-based wage discrimination.”
The court agreed with the tribunal that the act did not require the two employers to harmonize their wage grids, just that the top pay rates for their male and female job classes were equal.
The court also agreed that there was no discrimination in the act’s permission of wage differentials between male and female job classes. It acknowledged that the legislation did “not result in the elimination of all differences in male and female compensation,” causing pay gaps to persist even after pay equity of the top wage rates was achieved. However, this was an issue that would have to be addressed in a separate human rights complaint, not by the Pay Equity Tribunal in a complaint under the Pay Equity Act. The tribunal only had jurisdiction to apply human rights issues within the act, and if the unions felt the act itself was discriminatory, that was an issue for the Ontario Human Rights Tribunal, said the court.
The court upheld the tribunal’s findings that Lakeridge and the York Region District School Board achieved pay equity under Ontario’s Pay Equity Act with equal top job rates for their male and female job classes, despite differences in the wage grids and length of time it took each class to reach the top rates. The court noted that the act could be open to a human rights challenge because it didn’t fully eliminate pay inequality, but the existing pay equity regime did not violate the Ontario Human Rights Code.
For more information see:
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Ontario Pay Equity Act
Selected sections from Ontario’s Pay Equity Act:
Subsection 1(1):
“Job rate” means the highest rate of compensation for a job class.
Subsection 5.1(1):
For the purposes of this Act, pay equity is achieved in an establishment when every female job class in the establishment has been compared to a job class or job classes under the job-to-job method of comparison or the proportional value method of comparison and any adjustment to the job rate of each female job class that is indicated by the comparison has been made.”
Subsection 6(1):
For the purposes of this Act, pay equity is achieved under the job-to-job method of comparison when the job rate for the female job class that is the subject of the comparison is at least equal to the job rate for a male job class in the same establishment where the work performed in the two job classes is of equal or comparable value.
Subsection 7(1):
Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer.
Subsection 9(3):
Where to achieve pay equity, it is necessary to increase the rate of compensation for a job class, all positions in the job class shall receive the same adjustment in dollar terms.
