April 4, 2023

On The Basis of Sex Discrimination

Many Ontarians would presume that sex discrimination in the workplace is a thing of the past. Gone are the days when a female employee could be fired simply for getting married, or when married women simply weren’t hired at all as a matter of policy. These sorts of attitudes are ancient history, right?

Wrong. To this day, a survey of women in the UK (for comparison) reported that nearly ⅓ of female job applicants hide their rings because they worry that their marital status will be held against them. Women are still discriminated against in various forms, from attitudes towards them in the workplace to the still-existing gender pay gap to the harassment that occurs despite laws to the contrary. 

So what does sex discrimination look like in the 21st century, and what do employers need to look out for in case it’s happening right under their noses? Here are a few simple pointers:

Guidance from the Human Rights Code

Interestingly Ontario’s Human Rights Code (the “Code”) does not specifically define ‘sex,’ but the Human Rights Commission (the “Commission”) generally considers it to be “related to a person’s biological sex, male or female.” This also includes a broader notion of gender, as well as the inclusion of pregnancy (more on that later).

This means that no person, male, female, or non-binary, can be discriminated against based on how they are expected to act, behave, speak, or dress according to their gender. This goes far beyond refusing to hire someone based on their gender, and into smaller stereotypes that we may not even think of since they were routine for so many decades.

Gendered dress codes are a common example. For decades, expected work attire and dress code policies were separated by gender, with women often expected to wear skirts, dresses, and high heels, whereas men were expected to wear suits, ties, and other items traditionally deemed as ‘masculine.’ Policies were based around this, and those who violated workplace dress code policies could be punished accordingly. 

Within the past decade, the Commission has issued directives under the Code that prohibit such rigidity. Any dress code policies enforced by employees cannot be based on gender. In other words, no more high heels just for women, or no more neckties just for men. If either is going to be implemented in a formal dress code, they need to be done universally.

Yet discrimination may be even more subtle than that. Many workplaces still do a ‘poker night’ or a social event out at a sports game where mostly male employees are invited. Those female employees bold enough to inquire may be told that the organizer “thought that they wouldn’t enjoy it.” Not only is the approach discriminatory, but these events often serve as important team bonding occasions – one which women are often shut out of entirely. 

The Wage Gap

While circumstances have improved for women in the workplace and pay equity legislation is in place, there is still a significant gender wage gap between men and women working in Ontario. According to the Pay Equity Office, on an hourly basis, women make just 89 cents for every dollar earned by a man, with the gap more significant for racialized women, newcomers to Canada, Indigenous women, trans women, and women with disabilities.

The gap is even larger when calculated by average annual earnings – 29% as of 2020, with women earning 75 cents compared to each dollar earned by men. Both statistics have narrowed in the past decade, but the gaps are still there and are still significant. While there are some historical explanations such as historically lower-paying sectors, family caregiving responsibilities, etc., the Pay Equity Office states that “seventy percent of the gap remains unexplained.”

Pay close attention to what sort of pay gap might exist in your workplace, even unintentionally. Have you given women the same opportunities to rise in leadership? Are you offering them training and development to move forward in their careers? Are you encouraging them to grow professionally after taking parental leave, or despite any family obligations? These may be subtle but can make a key difference in your organization. 

Take a Pregnant Pause

One of the main areas where sex discrimination arises is in pregnancy. From women being questioned about their plans for children during the interview process to being forced to work while away on pregnancy or parental leave, sex discrimination in pregnancy still exists in multiple forms. It should be noted that men are not immune from such discrimination either – while men are more commonly taking parental leave, some workplaces and colleagues still look down on men who elect to take that time off. 

A woman taking pregnancy or parental leave is entitled to all the same perks as her colleagues who are not on such leave – male, female, or non-binary. This includes equal treatment in the workplace, equal opportunities for promotion, and an equal chance at succeeding in their role. Similarly, any discrimination against men who take time off for parental leave is equally prohibited. 

One of the most common questions employers ask is whether they can fire a pregnant employee. While the broad answer is no, the more detailed answer is that the termination cannot be connected in any way due to their pregnancy. An employee cannot be fired because they are pregnant, become pregnant, or is suspected of being pregnant. 

However, there are situations where pregnant employees will be subjected to business decisions entirely unrelated to their pregnancy. If a business is closing completely, or an entire team is being dismissed and that team includes a pregnant employee, those situations would allow for termination provided that the employer can show that the decision was in no way related to pregnancy.

Yet if a small team is conducting layoffs, and a pregnant employee or an employee on parental leave is one of the very few workers whose employment has been terminated, it may be more difficult for an employer to prove that that decision was entirely unrelated to their gender.

The Upshot

While outright gender-based harassment and sexual harassment may be more obvious to most employers, some of the more subtle sex discrimination that occurs may appear to be lingering beneath the surface in many workplaces. That does not mean that this discrimination is not present, nor does it mean that it’s okay. 
Employers need to stay vigilant, particularly when it comes to their wages, workplace policies, and what they see and hear in the workplace. If an employer senses or is informed of discrimination, consulting with a professional early can stop a bad situation from becoming a much larger problem. As employment and human rights lawyers, we are here to help. Contact us today to set up a consultation.