Equal Pay Day: Not making as much as your male coworker? Here’s what you can do

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Equal Pay Day: How to approach your employer if you’re getting paid less than your male co-worker
WATCH: Equal Pay Day: How to approach your employer if you’re getting paid less than your male coworker – Apr 8, 2019

Brianne Cail wasn’t meant to find out that her male colleague was earning more money than she was.

Working as a content writer at an online publication, Toronto-based Cail found out that her company wasn’t paying employees equally after a few months of being on the job.

“I was actually trying to sort some banking on my phone app and [my male colleague] was helping me,” she told Global News. “[He] was certain I got paid incorrectly because of how low [my pay] was compared to his.”

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Once they realized it was not a mistake, Cail said her coworker offered to go to HR with her.

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“He didn’t feel it was fair at all,” she explained.

“We had the same role, with him having no previous experience as a content writer, and he started a few weeks before me. Whereas I had both the schooling and the experience from freelance [writing].”

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Cail decided to bring up the pay difference with her manager, and said the experience wasn’t positive.

“I was told that I shouldn’t have been discussing my salary with anyone, and that my experience didn’t count,” Cail said. “I was told I would be able to receive a raise three months from that time — around my six months — but after a year, and discussing it with two other managers, nothing changed.”

The realities of the gender pay gap

Cail’s experience highlights many Canadians’ realities: the gender pay gap.

The gender pay gap is the difference in earnings between women and men in the workplace. This pay inequality means that women, on average, make less than men.

The gender pay gap disproportionately affects low-income women, racialized women, Indigenous women, women with disabilities and newcomers, the Canadian Women’s Foundation says.

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A recent study by job search giant Glassdoor found that women in Canada earn just 84 cents for every $1 earned by men, a gap similar to the one reported in official statistics. In 2017, Statistics Canada said Canadian women were making 87 cents for every $1 earned by men.

“The gender wage gap is one of the most challenging and pervasive manifestations of workplace discrimination in Canada,” said Aaron Rosenberg, an employment lawyer and partner at RE-LAW LLP in Toronto.

READ MORE: Women in Canada earn less than men — even for the same job: Glassdoor

“Although… laws recognize each worker as having a right to equal treatment and equal pay for equal work/value, the significant disparity in earnings between women and men endures.”

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Is it legal to pay people differently?

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Kathryn Marshall, a lawyer at Toronto employment law firm MacDonald & Associates, says that it’s illegal for employers to pay employees differently on the basis of sex.

“According to the [Ontario] Employment Standards Act, an employer cannot pay one employee at a rate of pay less than another employee on the basis of sex when they perform substantially the same kind of work in the same establishment,” Marshall told Global News.

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This means if you do the same kind of work that requires the same skills, responsibilities, and are in the same or similar working conditions, you should be getting paid equally.

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While each province or territory has their own laws, there’s federal legislation that says employees have the right to equal pay for equal work, too. Under the Canadian Human Rights Act and the Canada Labour Code, it is discriminatory for employers to pay workers on the basis of their gender.

There are exceptions, however, meaning there are instances in which employers can pay employees differently based on a variety of factors.

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In Ontario, the equal pay for equal work standard may not apply when the difference in pay is made on the basis of a seniority system, a merit system, a system that measures earnings by production quantity or quality, or any other factor other than sex, Marshall said.

Federally, she says there’s even more exceptions in the country’s Pay Equity Act. “The federal act seems far more onerous on employers to keep records and establish plans,” she added.

What should you do if you think you’re being paid unfairly?

If you do think you’re being paid less because of your gender, Marshall says your first best bet is to talk to your boss or HR department and ask why you’re making less than other employees.

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“Compensation, of course, is usually based on a whole bunch of criteria and factors,” she explained. “An employee should find out [if] there’s a legitimate reason why another person is making more [money].”

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Marshall said by asking your employer about a pay discrepancy instead of accusing them of sexism or discrimination, you’re allowing them to explain themselves to you.

“You want it to be a professional conversation where you’re actually just asking the questions, like, ‘Why is this person making more than me? We have the same job,'” she said. “Put it in their zone and have the employer explain what’s going on.”

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Based on what your employer says, Marshall suggests trying to rectify the pay discrepancy with them directly. Marshall said employers do not want to be accused of sexism or pay discrimination, so they may work with you to resolve the issue right away.

“See if you can negotiate a higher salary for yourself on that basis,” she said.

READ MORE: Who do Canadians trust most? Their employers, apparently

Rosenberg echoes this approach, and says that sometimes this conversation is all you need to have.

“In some circumstances, efforts to raise and remedy the issue directly with your employer (or human resources department) may be sufficient to resolve the matter,” Rosenberg said.

What are your legal options?

If talking to management does not resolve your pay issues, you can take legal action. You can take your employer to court on the basis of gender discrimination.

The problem, however, is that it can be very challenging to prove that you are being paid less based on your gender, says Marshall. She said that in order to win a discrimination case, you need evidence that your gender is playing a role in determining your salary — which employers can argue against.

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“Employers are not going to readily admit this, and so unfortunately, if you are going to go to a human rights court for discrimination, it’s not enough just to say, ‘I am making less than my male colleague and we have the same job; I’m being discriminated against,'” she said.

“You need to have something more to produce as evidence to show that your gender somehow factors into all of this.”

Rosenberg says evidence can include payroll data, job descriptions, pay equity plans and other company records. “Since this information is typically unavailable to employees, the various adjudicative bodies can order the company to produce this evidence,” he added.

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Another step an employee can take is filing a complaint with the Ministry of Labour if they think their employer is not complying with equal pay laws, Marshall said.

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Learning from experience

For Cail, not being offered an increased wage — even after being promised one — “zapped” her motivation at work. After her company laid off most of its writers, including her, she landed a new job.

Now, she says she is happier and loves her work. Looking back, Cail says she’s learned a lot from her past experience.

“I wish I had gone to HR first, but with the HR rep often not in office, I wasn’t quite thinking of that,” she said.

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“I can understand salaries being different based on previous jobs, but it was very discouraging to discover such a huge wage gap and no resolution in sight, or being able to have an honest conversation about it.”

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Marshall said that even with the legal system in place, she still sees many instances of pay inequality.

“I think sometimes people assume because there are all these laws … this kind of discrimination doesn’t happen anymore — but it does,” she said.

“It just happens in a less in-your-face obvious way.”

— With a file from Erica Alini

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