In the world of pay equity, what happens when a job transitions from one that is historically male dominated to one that is now female dominated?
That question was put to an Ontario arbitrator in a case involving Toronto Metropolitan University (formerly known as Ryerson.)
Its union, the Toronto Metropolitan Faculty Association, argued that the job class of “Professional Counsellors” had changed. In the university’s pay equity plan, those jobs were classified as a male job class.
The union, citing an evolution in demographics, argued it should be reclassified as a female job class.
The arbitrator didn’t get into whether or not it had changed but dealt with the obligation on the university to revisit the gender dominance of a job class that forms part of the pay equity plan.
Employer worried about manipulation of job classes
The university argued that changing the job class to neutral or female would open the door to “possible abuse and manipulation of job classes.”
That could have the effect of defeating the pay equity objectives in Ontario’s Pay Equity Act.
It argued the legislation is silent on revisiting the gender composition of a job class as part of pay equity maintenance.
It pointed out that, if a male job class becomes predominantly female and has compensation that is lower than other male job classes, then the union would be able to claim discrimination under the Human Rights Code.
“However, the employer points out, if successive collective agreements have had across-the-board increases, as typically occurs between the parties, then there is no real prospect of establishing that any job class has been subject to discrimination from the wage bargains of successive collective agreements,” the arbitrator said.
Achieving, maintaining pay equity two sides of same coin: Union
The union argued there is an onus on employers to re-evaluate the gender definition of job classes when they change.
The purpose of pay equity laws is a redress for systemic gender discrimination in compensation, it said.
“Achieving a pay equity plan and maintaining pay equity are two sides of the same coin,” is the argument it put forward.
It wanted the classes to accurately reflect current reality, and not be based on historical information that might now be misleading.
It put forward the idea of using a five-year time period as the basis for the assessment of gender dominance within a job class. If that was done, there would be no question that the Professional Counsellor job class would change, it argued.
That would make another domino fall: It would necessitate a new male comparator job class to be used against Librarians, a female job class, for the purpose of pay equity.
The arbitrator’s ruling
The arbitrator said the union’s challenge to the class did require an investigation. That review needs to include historical incumbency of the position and the gender stereotypes of fields of work.
“For a change in historical incumbency to be shown to have occurred, and to avoid the risk of flip-flopping because of contingent changes to the gender composition, such as the employer alluded to, there must be a clear, incontrovertible trajectory in the direction of the current gender incumbency,” the arbitrator said.
It didn’t endorse the five-year period suggested by the union. Instead, it said the evidence must leave no doubt that the trend is “definite, stable and persevering.”
It ruled that, as part of pay equity maintenance, the university must enter into negotiations with the union to determine whether a reclassification of Professional Counsellors was warranted.
For more information, see Toronto Metropolitan University v Toronto Metropolitan Faculty Association, 2022 CanLII 93192 (ON LA)
