PAY EQUITY LEGISLATION
PAY
EQUITY, OR EQUAL PAY FOR EQUAL WORK OF EQUAL VALUE, IS A LEGAL REMEDY DESIGNED
TO ADDRESS ONLY ONE ASPECT OF WOMEN’S UNEQUAL POSITION IN THE LABOUR FORCE,
NAMELY, THE UNDERVALUING OF WOMEN’S WORK IN PREDOMINATELY FEMALE JOBS.
PAY EQUITY AIMS TO ENSURE THAT NEITHER MEN NOR WOMEN ARE DISCRIMINATED AGAINST
IN THE AMOUNT THEY ARE PAID FOR DOING TRADITIONAL WOMEN’S WORK.
THE
CONCEPT OF “COMPARABLE WORTH”” PAY EQUITY MEANS EQUAL PAY FOR WORK OF EQUAL
VALUE. IT IS BASED ON TWO PRINCIPLES. THE FIRST IS EQUAL PAY FOR
EQUAL WORK. MALE AND FEMALE WORKERS MUST BE PAID THE SAME WAGE RATE FOR
DOING IDENTICAL WORK. THE SECOND IS EQUAL PAY FOR SIMILAR OR SUBSTANTIALLY
SIMILAR WORK (EQUAL PAY FOR WORK OF COMPARABLE WORTH). THIS MEANS THAT
MALE AND FEMALE WORKERS MUST BE PAID THE SAME WAGE RATE FOR JOBS OF A SIMILAR
NATURE THAT MAY HAVE DIFFERENT TITLES (E.G., “NURSE’S AID” AND “ORDERLY”).
THE
PAY EQUITY ACT APPLIES TO ALL EMPLOYEES, WHETHER FULL TIME, PART TIME OR
SEASONAL. IT DOES NOT, HOWEVER, APPLY EQUALLY TO ALL EMPLOYERS. THE ACT
DOES NOT APPLY AT ALL TO EMPLOYERS WITH FEWER THAN TEN EMPLOYEES. IF THE
EMPLOYER HAS 10 OR MORE EMPLOYEES BUT FEWER THAN 100, THEN THE EMPLOYER MUST
INSTITUTE PAY EQUITY, BUT NEED NOT MAKE OR PUBLISH A PAY EQUITY PLAN. IF THE
EMPLOYER HAS 100 EMPLOYEES OR GREATER, THEN THE EMPLOYER IS REQUIRED TO CREATE
AND THEN PUBLISH A PAY EQUITY PLAN.
THERE
ARE THREE DISCRIMINATORY PAY PRACTICES THAT THE LAW SEEKS TO REMEDY. FIRST,
WOMEN MAY GET PAID LESS FOR DOING THE SAME JOB AS MEN. IN ONTARIO, THIS RIGHT
TO “EQUAL PAY FOR EQUAL WORK” IS PROTECTED BY THE EMPLOYMENT STANDARDS
ACT, 2000, S. 42:
42(1)
NO EMPLOYER SHALL PAY AN EMPLOYEE ONE SEX AT A RATE OF PAY LESS THAN RATE PAID
TO AN EMPLOYEE OF THE OTHER SEX WHEN,
(A) THEY PERFORM SUBSTANTIALLY THE SAME KIND
OF WORK IN THE SAME ESTABLISHMENT:
(B) THEIR PERFORMANCE REQUIRES SUBSTANTIALLY THE SAME SKILL,
EFFORT AND RESPONSIBILITY; AND
(C) THEIR WORK IS PERFORMED UNDER SIMILAR
WORKING CONDITIONS.
{SOME}
CONTINGENCIES:
·
WOMEN
MAY BE SUBJECT TO DISCRIMINATORY, JOB PLACEMENT OPPORTUNITIES. THESE COULD
INCLUDE “MEN ONLY” JOB POSITIONS, OR
POSITIONS THAT REQUIRE QUALIFICATIONS THAT, WHILE NEUTRAL ON THEIR FACE,
COULD ONLY BE FILLED BY MEN. FOR EXAMPLE, MANY HEIGHT OR STRENGTH
CONDITIONS FOR JOBS ARE DISCRIMINATORY BECAUSE MOST WOMEN COULD NOT MEET THEM.
{THIS TYPE OF DISCRIMINATION IS FORBIDDEN BY THE ONTARIO HUMAN RIGHTS CODE.
(SYSTEMIC)}.
·
BECAUSE
THE ACT IS COMPLAINT BASED, IT MEANT THAT ONLY THOSE
WITH ADEQUATE RESOURCES COULD AFFORD TO CHALLENGE UNDER ITS JURISDICTION.
AS A RESULT, UNIONS, GIVEN THEIR ACCESS TO SUBSTANTIAL RESOURCES, HAVE PLAYED
THE PRIMARY ROLE IN PURSUING COMPLAINTS.
·
UNIONS ARE OVERWHELMINGLY MALE-ORIENTED STRUCTURES AND IN THE CASE
OF THE PUBLIC SERVICE UNIONS, THEIR POLICIES WERE CONSTRUCTED TO REFLECT GROUPS
OUTSIDE THE PUBLIC SERVICE (BENCHMARK)
·
UNIONS THEMSELVES WERE RE-ENFORCING PRACTICES THAT DISCRIMINATE AGAINST
WOMEN,
EVEN WHILE THEY FOUGHT TO INCREASE WOMEN’S WAGES.
·
UNIONS HAVE LONG ADHERED TO THE GOAL OF EQUAL TREATMENT FOR ALL. UNION SOLIDARITY MEANS
RECOGNIZING A COMMON GOAL THAT BENEFITS ALL MEMBERS EQUALLY – PAY EQUITY
ISSUES, HOWEVER, SEEM TO VIOLATE THIS COMMON GOAL BECAUSE THEY SUGGEST SPECIAL
TREATMENT AND THUS THEY ARE FEARED AS DIVISIVE.
·
THE GOVERNMENT AS A CARRIER OF CONTRADICTION – “ON THE ONE HAND THE
GOVERNMENT HAD ESTABLISHED PAY EQUITY AS A HUMAN RIGHT AND APPOINTS THE
TRIBUNAL THAT DETERMINES PAY EQUITY ISSUES; ON THE OTHER HAND, THE GOVERNMENT
IS AN EMPLOYER WHO RESISTS PAY EQUITY AND WHO HIRES THE SAME LAWYERS AS OTHER
EMPLOYERS TO CHALLENGE BOTH THE LAW AND ITS APPLICATION.”
{SOME}
RESULTS AND CONTRADITIONS:
PAY
EQUITY IS AN EXAMPLE OF HOW FEMINIST ACTIVISTS AND OTHERS HAVE USED THE LAW
TO TRANSFORM SOCIAL RELATIONS. IT HAS SIGNIFICANTLY IMPROVED WAGES FOR MANY
WOMEN IN A WAY NO OTHER APPROACH HAS ACHIEVED. BUT THE TRANSFOMATIVE PROCESS AND
THE RESULTS ARE CONTRADICTORY.
TRANSFORMATIVE
RESULTS:
1.
IT
HAS ENCOURAGED MANY WOMEN TO REASSESS THEIR WORK, TO EXAMINE THE KINDS OF
SKILL, EFFORY, RESPONSIILITIES, AND WORKING CONDITIONS INVOLVED IN THEIR JOBS,
AND TO DEMAND RECOGNITION.
2.
IT
HAS REFLECTED AND PROMOTED SOME POWER SHIFTS WITHIN UNIONS AND WORKPLACES AND
WITHIN SOCITY AS A WHOLE AS WOMEN’S WORK WAS REGARDED IN A NEW AND MORE VALUED
WAY.
3.
IT
CHALLENGED SOME OLD HIERARCHIES IN WORKPLACES AND UNIONS.
RESISTANCE:
1.
DIFFERENCES
IN WAGES AMONG WOMEN HAVE INCREASED (ARMSTONG AND CORNISH, 1997).
2.
EMPLOYERS
HAVE BECOME MUCH MORE SKILLED AT USING THE LAW TO RESIST.
3.
MORE
AND MORE THE “LIMITED” SUCCESSES OF SOME GROUPS IN WORKING TOWARDS PAY EQUITY
IS DEFINED AS A PROBLEM SOLVED – AND THERE ARE DEMANDS TO MOVE ON TO “OTHER
ISSUES.”
4.
WOMEN’S
VICTORIES ARE UNDERMINED BY NEW STATEGIES SUCH AS CONTRACTING-OUT AND A REFUSAL
TO FUND.
5.
{IN
SOME CASES} THE FAILURE TO UNDERSTAND OR PROMOTE PAT EQUITY HAS LED TO A
REINFORCEMENT OF OLD HIERARCHIES AND TO TOO MUCH FOCUS ON “LEGAL PROCESSES,
RATHER THAN STRATEGIES FOR CHANGE.”
CONCLUSIONS:
COMBINDED
WITH A NEW {NEO-LIBERALISM} EMPHASIS ON MARKET FORCES AND
DEREGULATION, PAY EQUITY WAS DIFFICULT TO IMPLEMENT IN THE FACE OF MOUNTING
RESISTANCE ==è AT THE SAME TIME, HOWEVER,
SUCH LEGISLATION IS NOW OFTEN THE ONLY PROTECTION WOMEN HAVE AGAINST THE
PRESSURES OF EFFICENCY, WHICH ARE DEFINED SOLELY IN TERMS OF PROFITS AND
MARKETS ==è ESPECIALLY IN SUCH TIME,
ANY HUMAN RIGHTS LEGISLATION HAS TO BE DEFENDED AND EXTENDED AS A COUNTER TO
MARKET FORCES.