To achieve pay equity, the Act requires that female job classes be valued and compared to male job classes. The employer must determine the gender of each job class as male or female before any comparisons can be done. Female job classes are jobs done usually by women, and male job classes are jobs usually done by men. It is possible to have job classes that are neither male nor female; these job classes are considered to be gender neutral.

i. What is the definition of female job class and male job class?

“Female job class” means,

• a job class in which 60 per cent or more of the members are female,
• a job class that a review officer or the Hearings Tribunal decides is a female job class or a job class that the employer, with the agreement of the bargaining agent, if any, for the employees of the employer, decides is a female job class [1. (1)].

“Male job class” means,

• a job class in which 70 per cent or more of the members are male, or
• a job class that a Review Officer or the Hearings Tribunal decides is a male job class, or a job class that the employer, with the agreement of the bargaining agent if any, decides is a male job class [1. (1)].

In deciding or agreeing whether a job class is a female job class or a male job class, regard shall be had to the historical incumbency of the job class, gender stereotypes of fields of work and such other criteria as may be prescribed by the regulations [1. (5)].

An employer may treat job classes that are arranged in a group of jobs as one female job class if 60% or more of the employees in the group are female [6. (6)].

An employer shall treat job classes that are arranged in a group of jobs as one female job class if a review officer or the Hearings Tribunal decides that the group should be treated as one female job class [6. (7)].

An employer may, with the agreement of the bargaining agent, if any, for the employees of the employer, decide to treat job classes that are arranged in a group of jobs as one female job class [6. (8)].

ii. How is the gender predominance of the job class determined?

The Act requires employers to apply three criteria or tests to determine the gender of the job class [1. (1), 1. (5)]:

1. Current incumbency
2. Historical incumbency
3. Gender stereotype of the field of work

iii. What does “current incumbency” mean?

Current incumbency is the percentage of female and male incumbents in the job class. Usually if a job class is filled by:

• 60 per cent or more female employees, it is a female job class
• 70 per cent or more male employees, it is a male job class

Employers must also consider historical incumbency and gender stereotype of the field of work.

iv. What if a job class is neither male nor female after applying the three criteria?

A gender-neutral job is not involved in the pay equity process. It cannot be used as a comparator nor can the incumbents receive pay equity adjustments.

Examples of Gender Neutral Job Classes

1. The assembly line workers in a particular establishment where there are more or less equal numbers of women and men doing the job, and there is no gender stereotyping for the job may be a gender neutral job class for pay equity.
2. A gym provides a personal training service. To encourage both men and women members to buy this service the employer has always employed an equal number of male and female personal trainers. In this company, personal trainers are likely a gender neutral job class.
3. A new internet company has two social media writers, one is male and the other is female; both have been working since the company started. In this company, these writers would likely be in a gender neutral job class.
4. The credit and accounts manager of a major department store is a position that has been held by roughly an equal number of men and women over the years. For this employer, this job class may be considered gender neutral.

v. What does historical incumbency mean and how is it applied?

Historical incumbency refers to pattern of employment for a particular job class within an establishment. For example, if the job class in question is one that has been filled mostly by women, and a man is recently hired, it may still be considered a female job class in that establishment.

Historical incumbency can only apply to situations where the job classes existed when pay equity requirements were imposed. Logically, if the employer is considered a new establishment, then the historical incumbency of job class would not apply because there would be no history of the job class in the establishment, unless the establishment was a successor employer who purchased and continued to operate a business.

To apply the historical incumbency criteria, the Tribunal determined in Pay Equity Office v. GL&V Process Equipment Group Inc., 1999 CanLII 14828 (ON PEHT) that the period used “must be one that fairly represents the incumbency of the job class over a period of time during which the job class characteristics…remained substantially the same.” This means that changes in the number and percent of men and women from year to year may not necessarily result in a change in the gender predominance of the job class.

vi. What does gender stereotype of the field of work mean and how is it applied?

Gender stereotype of field of work refers to what most people commonly believe to be jobs held by women and jobs held by men. For example, nursing is generally and traditionally seen as a female job; a truck driver is generally and traditionally seen as a job performed by men.

Employers who are met with complaints about their decision regarding the gender of a particular job class may be asked to explain their decision during an investigation. In applying the criterion of gender stereotype of field of work, employers sometimes justify their decisions by relying on statistical data, reports or information such as the gender breakdown of occupational classifications from Statistics Canada, graduation rates by gender in professional programs or fields of study, or occupational data by gender from professional associations.

It is important however for employers to consider the actual job characteristics and duties of the job class in its own establishment and whether those characteristics and duties are associated with, or can be found in a typical female job or male job Association of Professional Student Services Personnel v. Toronto Catholic District School Board, 2006 CanLII 61262 (ON PEHT).

vii. Can a job class be classified as female in one company and male in another?

Yes. Pay equity is implemented and achieved in the employer’s individual establishment; the focus of the pay equity process is not sector, industry, or province-wide. Therefore, it is possible that the gender of the job class may be male in one company but female in another. For example, if the accountant position has always been occupied by women in one establishment and by men in another, the gender of the job class is female in the first case and male in the second.

In its overall structure, the Act requires pay equity to be achieved within the establishment. As such, decisions made about the gender of a job class should reflect the reality of each individual workplace. However, generic jobs that are not restricted to any particular employer may be helpful to determine whether the position has a gender stereotype
Hatts Off Specialized Services Inc. v. Employees of the Employer, 2005 CanLII 60098 (ON PEHT).

viii. How do the criteria apply to a single incumbent job class?

The Tribunal has raised a caution about the single incumbent job class especially where only one person has occupied the job for many years and has specified that some weight must be given to the gender stereotype of the field of work. In addition, the number of persons in the job class does not necessarily mean that the results of current and historical incumbency should be discounted, particularly if both criteria point to the same result.

ix. How is gender of a new job class determined?

The employer must apply the current incumbency and gender stereotype of the type of work for determining the gender predominance. To decide the gender predominance of the job class, employers are expected to consider all relevant factors pertaining to work performed in the job in their workplace.

x. Employers must be reasonable in determining the gender of the job class

Under the Act, the gender predominance of a job class is an element where a range of options and possible choices is permitted. In the case of Pioneer Youth Services (PYS Associates Ltd.) v. Canadian National Federation of Independent Unions, 2002 CanLII 49449 (ON PEHT), the Tribunal has ruled that where there is a complaint that is founded in an employer’s exercise of discretion, the decision the employer made will be acceptable if it was considered to be reasonable, given the specific circumstances in which the determination was made.