Equal Pay for Equal Work

By Lauren Wildgoose (Student in Employment Law Division)

We don’t want employers to pay employees less because of something as arbitrary as their sex or their race. So why would we let them do it because they work part time? As it turns out, the recent changes to the Employment Standards Act (ESA) through Bill 47 might actually let employers do both.[1]

Previous changes to the ESA prevented employers from paying part-time workers (or casual, seasonal, or temporary employees) less than their full-time counterparts for doing “substantially the same work”. However, Bill 47, passed in November 2018, revoked this modest protection.

The concentration of vulnerable populations in part-time work means that in practice, the removal of this protection will unfairly target women, racialized minorities, and recent immigrants.

Just look at the numbers:

  • In 2015, two thirds of part-time employees were women. [2]
  • In 2008, recent immigrants were 16% of the part-time workforce but only 10% of the total workforce.[3]
  • In 2014, white men were 27% more likely to be employed full-time (and permanently) than racialized men.[4]
  • In 2014, white women were 18% more likely to be employed full time than racialized women.[5]

Because of this distribution of women, racialized minorities and recent immigrants in the part-time workforce, the revocation of “equal pay for equal work,” based on employment status, arguably constitutes adverse effects discrimination against these groups. Adverse effects discrimination happens where the government enacts a law that seems neutral and applies to everyone, but disproportionately imposes a burden on certain groups defined by gender, place of origin, or other protected grounds.[6]

At its root, the revocation of the equal pay for equal work provisions allows employers to pay employees less based on a characteristic that has no connection to the employee’s merit, and no other rational justification.

Some employers might object, arguing that the revocation of the equal pay for equal work provision has nothing to do with race or gender; lawmakers were simply trying to preserve employers’ flexibility to pay people differently according to the needs of their business.

However, adverse effects discrimination need not be deliberate; the law just needs to have a disproportionate impact on a protected group. While the intention of the revocation may not be to discriminate against women, racialized minorities and recent immigrants, the effect of the law is to impose on them a very real burden that the whiter, more male-dominated, full-time workforce, does not have to face.

Furthermore, the ESA already contained exceptions to “equal pay for equal work” for reasons of seniority, merit, or any other factor apart from sex and employment status [emphasis added]. This means that if an employer had a valid reason for paying a part-time employee less than a full-timer, like the fact that they have been there longer or have additional responsibilities, they were already entitled to do so.

The revocation of equal pay for equal work through Bill 47 does more than just discriminate against people on the basis of employment status. It singles out some of our society’s more vulnerable and condones putting a lower price on the work they do.

[1] Michael Mitchell and John Murray (2017) Changing Workplaces Review: Agenda for Workplace Rights,
Final Report at 178, online: https://files.ontario.ca/books/mol_changing_workplace_report_eng_2_0.pdf p. 177; Parkdale Community Legal Services and Workers’ Action Centre, “Making Ontario Open for Business Act: Submission to the Standing Committee on Finance and Economic Affairs Review of Bill 47” (November 2018) at 12, online: http://workersactioncentre.org/wpcontent/uploads/2018/11/Policy_papers_WAC__PCLS_submission_to_the_Standing_Committee_re_Bill_47_file.pdf.  

[2] Statistics Canada, CANSIM Table 282-0008 – Labour Force Survey Estimates, by North American Industry Classification System, Sex and Age Group (Ottawa: Statistics Canada, 2016) as cited in Michael Mitchell and John Murray, (May 2017) at 178.

[3] Andrea M. Noack and Leah F. Vosko, Precarious Jobs in Ontario: Mapping Dimensions of Labour Market Insecurity by Workers’ Social Location and Context (Toronto: Law Commission of Ontario, 2011) Online: http://www.lco-cdo.org/wp-content/uploads/2012/01/ vulnerable-workers-call-for-papers-noack-vosko.pdf as cited in Michael Mitchell and John Murray (2017) at 178.

[4] Walter Lewchuk, Michelynn Laflèche et al., The Precarity Penalty: The Impact of employment Precarity on individuals, households and communities – Executive Summary (May 2015) at 7.

[5] Ibid at 7.

[6] Ontario Human Rights Commission v. Simpsons‑Sears Ltd. qtd in Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624 at 63, 151 DLR (4th) 577.

[7] Supra note 4 at 6.

[8] Ibid at 3.