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Embarrassing wage gap persists

In 2017, women in Canada earned an average of $0.87 for every dollar earned by men, Statistics Canada has reported. By then, Canada’s wage gap already attracted the attention of the United Nations, whose Human Rights Committee reported its concerns with “the high level of the pay gap” in 2015.

The committee formally recommended that Canada “strengthen its efforts to guarantee that men and women receive equal pay for work of equal value across its territory, with a special focus on minority and indigenous women.”

Indeed, Statistics Canada has found that Indigenous women earn 36 per cent less than non-Indigenous men and 18 per cent less than Indigenous men. Similarly, racialized women earn 34 per cent less than white men and 19 per cent less than racialized men. Disaggregated data indicates the wage gap contains even deeper disparities based on age, disability and full-time versus part-time work.

The committee also noted that “legislation relating to equal pay differs at the federal, provincial and territorial levels and for the public and private sectors, and does not exist in some provinces.” The committee further recommended that all of Canada’s provinces and territories adopt a legislative framework on equal pay, covering the public and private sectors.

Though not without its own flaws, Ontario’s presently stalled Pay Transparency Act, 2018, SO 2018 was intended to alleviate some of these inequalities. The act would have operated in concern with other legislation, such as Ontario’s Pay Equity Act, RSO 1990, c P.7 and the federal Employment Equity Act, SC 1995, c 44.

However, the act increasingly finds itself in limbo. The act is not in force, though it was first introduced by then-Premier Kathleen Wynne last year. As drafted, the act would impose four key duties on large employers. Last week, Conservative Minister of Labour Laurie Scott announced the government was asking employers for feedback on those obligations.

Section 5 of the act would prohibit employers from asking job applicants about their previous compensation (though applicants are allowed to “voluntarily and without prompting” disclose this information).

Section 6 requires employers to include anticipated salary rate or range in all “publicly advertised job postings.”

The Conservatives’ newly announced consultation appears to largely target s. 7, which requires prescribed employers and employers with 100 or more employees to publicly post an annual “pay transparency report” setting out their “workforce composition” and compensation gaps with respect to “gender and other prescribed characteristics.”

Section 8 prohibits employers from penalizing employees who inquire about their compensation, disclose their compensation to a co-worker or inquire about the employer’s pay transparency report, among other protected actions.

The act is not without precedent. Regardless of employer size, unionized employees already enjoy some of the act’s titular transparency, since collective agreements typically include detailed and extensive wage grids.

There is also the famous “sunshine list,” wherein the Public Sector Salary Disclosure Act, 1996, SO 1996, c 1, Sch A requires provincially funded organizations to every year publicly disclose the names, positions, salaries and total taxable benefits of employees paid $100,000 or more.

But the act goes further in requiring large employers to break wages grids down by (at least) gender. Even still, the collection of identity-based data will not be new to most employers. The Law Society of Ontario itself asks licensees how they identify with respect to race, gender and indigeneity.

A through-line in the Conservative party’s labour law announcements has been a concern for employers. For example, the provincial minimum wage rose to $14 from $11.85 on Jan. 1, 2018, and it was supposed to rise to $15 on Jan. 1, 2019. (Note that this is not a living wage. In 2015, TVO calculated a living wage in major Ontario cities as high as $18.52.) Last fall, Premier Doug Ford froze minimum wages at $14, reportedly to protect employers from being unable to hire workers.

Contrary to fears of minimum wage-related job losses, the Financial Accountability Office of Ontario reported last month that 2018 was marked by “robust gains in full-time employment and a continued decline in the annual unemployment rate.”

Importantly, the office also noted that the gender pay gap improved by two cents in 2018, “primarily due to a steep increase in the wages of part-time female workers.”

The act is not perfect. It would apply only to workers defined as employees under the Employment Standards Act, 2000, SO 2000, c 41, leaving out independent contractors. As well, Ontario’s Equal Pay Coalition has called for the act to apply to workplaces with more than 10 employees, on the basis that 98 per cent Ontario employers have less than 50 employees.

At base, the act’s intent should be uncontroversial. It proposes cross-referencing data that is otherwise siloed — income and gender. It is one small step toward evidence-based labour policy.

The government’s consultation seeks to ask employers how much time and money it would take them meet the act’s reporting requirements. “The measure of our laws on closing the gender pay gap is not whether big business finds it onerous to implement them,” said Ontario Federation of Labour secretary-treasurer Patty Coates.

“Leaving wage inequities in place makes women the economy’s ordained shock absorbers,” noted Supreme Court Justice Rosalie Abella for the majority in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, [2018] 1 SCR 464, 2018 SCC 17. In that case, the court made short shrift of Quebec’s argument that it had “advanced the goal of ensuring employer compliance” by amending that province’s pay equity laws.

We are well beyond the question of proving there is a wage gap in Ontario. At this point, the numbers are trite and embarrassing. The question remains what we intend to do about it. Employers who pay their employees fairly and without discrimination have nothing to fear.

Fathima Cader practises public interest, human rights, employment and labour law in Toronto. She can be reached at cader@caderlaw.ca.

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