CHAPTER 13 Employment Law
of Ontario deals with claims of discrimination filed under the Human Rights Code through mediation and adjudication. It can make orders when it finds that a complaint is justified, awarding monetary compensation, reinstatement or other restitution to the complainant, or requiring a party that contravenes the Human Rights Code to comply with it. The Québec Charter of human rights and freedoms provides that no one may discriminate on prohibited grounds in respect of the hiring, apprenticeship, duration of probationary period, vocational training, promotion, transfer, displacement, laying-off, suspension, dismissal or conditions of employment of a person or in the establishment of categories or classes of employment. The prohibited grounds are race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age (except as provided by law), religion, political convictions, language, ethnic or national origin, social condition, handicap or the use of devices to palliate a handicap. However, the Charter specifies that distinction, exclusion or preference is deemed non-discriminatory if it is based on the aptitudes or qualifications required for employment or justified by the charitable, philanthropic, religious, political or educational nature of a non-profit institution or an institution devoted exclusively to the well-being of an ethnic group. It also provides that employers must pay equal wages to all employees performing equivalent work at the same place without discrimination on prohibited grounds. Québec’s Commission des droits de la personne et des droits de la jeunesse investigates complaints of discrimination and acts as a conciliator between the parties. If conciliation fails, the matter may go to negotiated settlement or before an arbitrator or, if recourse to such remedies is not agreed to by the parties, to a hearing before the Tribunal des droits de la personne. The Tribunal may impose any remedial
measures, including the reinstatement of a worker, when such outcome would be fair and expedient under the circumstances. PAY EQUITY Most jurisdictions, including Ontario and Québec, have adopted specific pay equity legislation enshrining the principle of equal pay for work of equal value. This is distinct from the concept of equal pay for equal work, which is typically protected in employment standards legislation. Whereas equal pay for equal work compares pay for employees of different genders in the same positions, equal pay for equal value compares different positions, which are typically designated as “female” or “male” job classes based on statistical analyses. The comparison is based on skill, effort, responsibility and working conditions and aims to ensure that employees in traditionally female job classes who contribute the same value are not paid less. Employees in “female job classes” who are underpaid compared with the pay for jobs of similar value for employees in “male job classes” have the right to salary adjustments. In Ontario, the Pay Equity Act applies to all private sector employers with 10 or more employees and all employers in the public sector. However, in the private sector, certain provisions of the Ontario legislation requiring an employer to devise a pay equity plan apply only to employers with 100 or more employees. In Québec, the legislation applies to private and public sector employers with 10 or more employees. The employer’s obligations vary according to the number of employees. These obligations for an employer with 10 to 49 employees include carrying out a pay equity process and, if it has 50 or more employees, devising a pay equity plan. Employers with 100 or more employees must also set up a pay equity committee.
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