Pay Equity: Complexity and Competition in Legal Rights

and Social Processes

Joe,Ozier

&Imran

Introduction

“This chapter is an attempt to reveal some of the contradictions inherent in pay equity and to do so from the perspectives of people in three quite different locations (positions). It is not an attempt to provide a comprehensive analysis of pay equity processes, to capture the full range of pay equity’s complexity, or to represent the entire range of actors in this particular play (those effected by pay equity). Nor does it offer a single, integrated view. Rather, it presents three different voices participating in the pay equity process. The purpose is to draw out some of the contradiction in this process and to do so in ways that have some general implications for theory and practice in terms of using the law to transform relations of ruling.”

Pay Equity Defined

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. (Text) (Biased?)

Pay Equity Alternative Definition

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”) (HR Text)

Pay Equity – The Framework

“Implementation of Pay equity is based on comparing the work of female dominated job classes to the value of work performed by males. Comparisons require the use of a gender neutral, unbiased comparison system to evaluate the jobs in an establishment. Comparisons must be based on the amount and type of skill, effort, and responsibility needed to perform the job and on the working conditions where it is performed. The comparison must be done in such a way that the characteristics of “male” jobs such as heavy lifting and “dirty” working conditions, are valued fairly in comparison to the characteristics of “female” jobs, such as manual dexterity and caring for others.” (HR text)

Issues Discussed in the Text

Women being paid less than men doing similar work.

Lower wages attached to work dominated by women

Sex segregation of the workforce.Establishing equitable value for work of

different types.

Steps taken to remedy

1970 Royal commission was assigned the task of investigating the status of women.

This lead to the inclusion of section 11, in the Canadian Human Rights Act, in 1978

Section 11 defined unequal pay for work of equal value as discriminatory

The Application of Section 11

Section 11 required that women file a complaint and prove discrimination

If successful the treasury board, by way of commission, would be assigned to the task of investigating and settling claims

If commission could not resolve the claim then a tribunal would be organized to hear complaints and order a settlement

The contradictions as described by Pat Armstrong

Who is She? Professor Of Sociology & Women studies.

She served as an expert witness and has testified both about the need for pay equity and about the criteria for job evaluation schemes that are intended to reduce gender bias.

Contradictions continued..

Establishing objectivityProving the validity of her evidence given

her history as an advocate of women’s issues (autonomy)

Establishing a criteria to evaluate jobs, skills, responsibility and value

trying to determine gender dominance in particular jobs

To sum it up..

“Attempts federally to develop a universal classification system that would address the gender bias and apply to all jobs have failed in part because whenever components of women’s work are made visible and valued, there is a corresponding demand to extend the definitions to male-dominated work.”

Contradictions as described by Elizabeth Millar

Who is She? Staff member of the Public Service Alliance of

Canada, which is a union that represents 180,000 public sector workers. She was involved in struggling to have the Canadian Human Rights Act applied & enforced. She through their union involvement was part of the decade long battle to bring equal pay for work of equal value to the largest occupational group within the Federal Public Sector.

Contradictions Continued..

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.

Contradictions Continued..

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.

Contradictions Continued..

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.

Contradictions Continued..

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.”

Contradictions as described by Mary Cornish

Who is She?She is a labour lawyer who chaired a

group that successfully lobbied for pay equity legislation in Ontario and lead a number of precedent setting cases through the legal system in Ontario.

Contradictions Continued..

Summed up in this quote…“The struggle for pay equity is constant & neither begins nor ends when legislation is adopted. It is constant in part because conditions change, in part begins the law gets used in particular ways & in part because contradictions & compromises are always found in making & applying the law.”

Ontario Pay Equity Act

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 then 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.

Ontario Pay Equity Act continued..

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.

Continued..

Second, 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)

Continued..

The third type of pay discrimination is more subtle and more difficult to defeat. It involves the undervaluation of jobs performed by women. This is also referred to as “equal pay for work of equal value”, or pay equity. This form of discrimination is dealt with in the Pay Equity Act. That act sets out a regulatory scheme to prevent this form of pay discrimination and requires employers to provide equal pay for work of equal value.

QUESTIONS

Is the government acting hypocritically when they challenge claims of discrimination, directed against them, under their own legislation?

Do you think Pay Equity is inflationary?Do you believe the current gap between

male and female employment issues are as significant as they were 20 - 30 years ago?

Do you believe that we would be better of with a female professor?