History of Protection for Equal Pay
Rights to equal pay are one type of response to the problem of sex discrimination in pay.
It used to be very common for employers to pay men more than women even when they do exactly the same job. Before the 1950s, most Canadians accepted that men should be paid more than women for doing the same work because men were supposed to be responsible for supporting their families and women were not. Men were the “breadwinners” and women were responsible for running the home.
But times changed.
After the Second World War, many countries agreed that it was very important to create an international agreement that people, regardless of what country they live in, should be protected from discrimination and should have the same basic human rights.
The United Nations created the Universal Declaration of Human Rights in 1948, and Canada was one of the many countries that signed it. One of the rights in the Declaration was:
Everyone, without any discrimination, has the right to equal pay for equal work.
During the 1950s, the federal government and the provinces passed equal pay laws to create this right in Canada. The federal government passed An Act to Promote Equal Pay for Female Employees in 1956. This law also applied in the Northwest Territories.
Most of these laws prohibited employers from paying women less than men for doing the same work, and most were part of employment or labour standards legislation.
Unfortunately, this right was not very helpful. It was very hard for women to use this right to make sure that they actually got paid as much as men for doing essentially the same work. Sometimes, the difference in pay was not in wages, but in benefits or bonuses, and employers could “hide” a difference in pay by calling it a benefit or a bonus. Sometimes, the work performed by a female employee was not completely the same as the work performed by a male employee. For example, often “male” jobs had different job titles than “female” jobs. Employers could argue that the difference in job title meant that the work was not the same. Or the male job might have slightly different duties. Any small difference in the work could allow an employer to pay men and women very differently.
Example: If an employer employees a man and a woman in the job of “cook” and they have exactly the same duties, the employer must pay the same wages to both employees. But, if the male employee’s job title is “chef” and the woman’s job title is “cook” or the man is responsible for doing an annual inventory but the woman is not, the employer may be free to pay the women less because her job is not identical to that of the male employee.
Legislatures responded to these problems by changing this right to equal pay. Instead of “equal pay for the same work”, new laws protected equal pay for the same or substantially similar work between men and women. This meant that minor differences between the work a woman did and the work a man could no longer be used as a reason to pay the woman less. These laws also defined “pay” to include more than wages, but also benefits, pensions and other valuable job-related benefits, such as housing and clothing allowances.
Example: If an employer employs a man with the job title “chef” and a woman with the job title “cook” but they actually do the same work for the employer, the employer must pay both employees at the same rate. Even if the man has a few occasional additional duties, as long as these differences are minor or incidental, the woman has the right to pay equal to the man.
By the 1970s, people were talking about a different idea of equal pay. Women were still earning a lot less than men. More and more single mothers were trying to support their children on their own, and more and more women and mothers were living in poverty. In response to these problems, some people said that the problem was not so much that women and men were being paid differently for doing similar work, but that men and women do not do similar work at all. They work in entirely different occupations. For example, more women than men work in nursing, more men than women work as mechanics. They said that problem is that “women’s work” is just not considered as valuable as “men’s work” simply because it is done by women and that leads to low pay.
The right to equal pay for work of equal value is a response to this concern. It prevents employers from paying work done by men differently than work done by women, even when the work is dissimilar, if the work is of equal value to the employer. This right is much more complicated than the right to equal pay for the same or substantially similar work because it requires a way of figuring out when dissimilar jobs have the same value to the employer.
Another important difference between the right to equal pay for work of equal value and the right to equal pay for the same or substantially similar work has to do with how you compare the work. The right to equal pay for substantially similar work compares one or more male employees with one or more female employees where all of these employees are doing similar jobs. But the right to equal pay for work of equal value is more concerned with comparing groups than with individuals (men or “male” work are compared with women or “female” work).
Example: An employer employs cooks and security guards. Most of the cooks are female and most of the security guards are male. The security guards are paid more than the cooks. Is this contrary to the right to equal pay for work of equal value? The answer depends on whether comparing the cooks to the security guards is comparing men and women (or male and female work) and on whether we agree that the work that the cooks do and the work that the security guards do is equal in value to the employer.
Different Canadian jurisdictions have taken different approaches to the right to equal pay for work of equal value. Some, like the federal government and the Yukon Territory have put the right to equal pay for work of equal value in their human rights laws. This means that an employee or group of employees can make a human rights complaint and use the human rights process if they believe that their employer is not respecting their right to equal pay for work of equal value.
Others, like Ontario and Quebec, have enacted special laws, called pay equity laws that require all employers to take positive steps to make sure that they pay male and female employees equally for work of equal value, even if no one makes a complaint.
Still other jurisdictions, like Saskatchewan and Manitoba, have pay equity or equal laws or policies that apply only to public sector employers and employees. This reflects a belief that public sector employers are better able than private sector employers (especially small private sector employers) to take on the complicated task of figuring out what work in the organization is equal in value.