THE QUESTION
I am an engineer doing engineering work and am titled (and categorized in the HR system) as an engineer. However, a colleague remains untitled and uncategorized as an engineer while also doing engineering work. Typically engineers in our company are paid more than the title my colleague currently has. How can my colleague get the title and pay that she deserves?
THE FIRST ANSWER
Lai-King Hum, founder and senior lawyer, Hum Law, Toronto
There appears to be more than simply a pay differential at play here. From the context, I assume you are a male professional engineer, licensed by a provincial regulatory body, such as the Professional Engineers of Ontario (PEO) who is concerned about a female colleague. Let us also assume that the work is being performed in Ontario.
If your female colleague is also a PEO licensed engineer but is not classified internally as an engineer nor being paid the same as her male colleagues, although the company is relying on her professional designation and she is performing the same engineering work, then there is likely a contravention of Ontario’s laws. The same also applies if you are both nonlicensed engineers.
There could be a breach of the “equal pay for equal work” provisions of the Employment Standards Act, 2000, which prohibit an employee of one sex to be paid less than an employee another sex when, (a) they perform substantially the same kind of work; (b) their performance requires substantially the same skill, effort and responsibility; and (c) their work is performed under similar working conditions.
There could also be a breach of the Human Rights Code, which prohibits discrimination in the workplace, such as differential treatment on the basis of sex, gender, sexual orientation and race.
If there is an HR department, start with a conversation with them requesting that the situation be investigated. If that fails, ultimately, your colleague would have to be the one that seeks remedies in the appropriate forum, such as through a complaint with the Ministry of Labour, or a proceeding in court or at the Human Rights Tribunal.
There are similar protections under employment and human rights laws in each province and territory of Canada.
THE SECOND ANSWER
Alison Longmore, partner, Jewitt McLuckie & Associates, Ottawa
It is difficult to answer your question based on limited information but for purposes of answering your question, I assume your colleague is certified as an engineer.
If you are both working in non-union positions, it is not illegal for employers to pay similarly qualified employees different salaries (subject to the rest of this answer). You and your colleague may or may not have a written contract of employment setting out salary details but you are both free to try and renegotiate salary with your employer.
If your colleague believes that gender plays a role in her lower salary, she could file a human rights complaint as all provinces, territories and the federal government prohibit discrimination in employment on the basis of sex and/or gender. In addition, Ontario’s Employment Standards Act prohibits employers from paying an employee less money than another employee on the basis of sex when they are doing substantially the same kind of work at the same establishment subject to exceptions including seniority and merit. An equal pay for equal work complaint is distinct from a pay equity complaint which addresses disparities in pay between different jobs. No other province or territory has yet passed employment standards protections based on “equal pay for equal work”.
If you and/or your colleague are unionized, speak to your union about the possibility of filing a grievance regarding job evaluation or classification as well as a grievance regarding equal pay for equal work.
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