May 4 2017
Hat-tip to lawyer Jeff Dutton at @DuttonHRLaw for noting a job ad posted on the job posting website Indeed that was seeking: “a few ladies and a few guys” for general labour jobs. According to the ad, “Pay is $11.5 ladies, $12 guys“. The employer is a company called Delta Staffing Services of North York, which is apparently staffed itself by people who have never taken an employment law course or been trained on the laws of recruitment.
In Ontario, it has been against the law for nearly 70 years to pay men and women different rates when they are doing the same job . Here is the key section from the 1951 Female Employees’ Fair Remuneration Act for you legal history buffs:
2.-(1) No employer and no person acting on his behalf shall discriminate between his male and female employees by paying a female employee at a rate of pay less than the rate of pay paid to a male employee employed by him for the same work done in the same establishment.
That prohibition in revised form now appears in Section 42 Employment Standards Act. And of course the Human Rights Code also prohibits discriminatory pay rates, as does the Pay Equity Act.
Perhaps the Delta ad is actually referring to two different jobs, not the same job, that pay different rates. If that is the case, then the question becomes why women, er ‘ladies’, are presumed to be applying for the lower paying of the two jobs. Keep in mind that it is also illegal for an employer to post a job ad that “directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination” (Section 24(1)). Section 24(4) deals specifically with staffing agencies like Delta Staffing. It reads:
(4) The right under section 5 to equal treatment with respect to employment is infringed where an employment agency discriminates against a person because of a prohibited ground of discrimination in receiving, classifying, disposing of or otherwise acting upon applications for its services or in referring an applicant or applicants to an employer or agent of an employer.
What do you think? Is there any legal argument you can come up that would support the conclusion that the job ad posted by Delta Staffing Services on Indeed is not illegal?
Illegal Job Ads are an Epidemic
Having not been in the job market for some time, I was not even aware of the website called Indeed, but I just spent 10 minutes looking around the site. In fairness to Delta Staffing, the site seems to be a cesspool of discriminatory, unlawful job ads. I sometimes play a game in my employment law course that involves students seeing how long it takes them to find an illegal job ad on the Internet for an Ontario company. So it comes as little surprise to me that I found lots of illegal job ads in my 10 minutes on Indeed, including the following:
* Female general labourers wanted who can lift, carry, push and pull packages up to 20 pounds
* 20 female employees for clothing company, who must speak Hindi, Punjabi, AND English
* Asians and Europeans wanted for labourer jobs (Delta Staffing Services again)
*Light packing job “for females”
* “Waitress Wanted” [e.g. Female server]
* Male general labourers wanted
* Male custodian wanted
This is a small sample I found in a few minutes. What is clear is that there is a wide spread belief that it is lawful to post a job ad that includes gender as a qualification. In fact, it is a violation of the Human Rights Code to do so, as demonstrated in cases such as Cenanovic v. 2332489 Ontario Inc [job seeking female servers], and Wedley v. Northview Co-Operative Homes [maintenance man wanted].
The rampant use of illegal jobs is result of two factors. Firstly, there is wide spread ignorance of what human rights laws actually require. The Ontario Human Rights Commission has prepared a nice guide on avoiding unlawful job ads. I explain the law in some depth in Chapter 26 of my book The Law of Work [Putting Human Rights Law to Work]. However, it is apparent that many people responsible for drafting job ads have not done much reading on the subject.
Secondly, there is virtually no penalty for discriminating in a job ad. In the Cenanovic decision cited above, the Tribunal order no sanction at all, other than a declaration that the job ad violated the Code. In the Wedley v. Co-Operative decision, the remedy for posting a discriminatory job ad was $5000 to the complainant for loss of the right to be free from discrimination. That’s something, but still not much of a big hammer. Sometimes the Tribunal orders the employer to attend training, but mostly we are talking about a slap on the wrist.
The justification for the weak remedial response to illegal job ads is, I presume, that little harm is done by the ad itself, as opposed to the actual hiring decision. If the employer actually makes it hiring decision based on gender, then a remedy can be issued for that breach of the Code, but there is little damage caused by the ad itself. The difficulty with that line of reasoning is that the illegal job ad may already have screened out many job seekers who otherwise may have applied for the job. A job ad that seeks only men will weed out women, who won’t bother applying even though they could have done the job just fine. These job seekers are the invisible victims of illegal job ads. However, since they do not come forward, the Tribunal does not consider them when fashioning a remedy for the illegal ad.
Issue for Discussion
1. Do you think it should be unlawful to list gender as a job requirement in a job ad?
2. It is illegal to chose employees based on their gender except in some narrow circumstances (see Chapter 28 of Law of Work). Therefore, should the law regulating discriminatory job ads be abolished knowing that an employer that hirers based on gender is breaking the law anyways? Is there a benefit to having a separate legal prohibition against discrimination in job ads?
3. Should the sanction for illegal job ads be increased? If you believe so, what sanctions would you suggest?