Explaining Pay Discriminationeasier said than done
Pay discrimination (sometimes called compensation discrimination) is when an employer doesn’t give similar pay for workers that are doing substantially equal work based on something like their sex, or race, or any other protected category that they’re a member of. This sort of discrimination is illegal under law, such as the Fair Work Act (2009), Sex Discrimination Act (1994), WGEA (2012), Disability Discrimination Act (1992), and any relevant state anti-discrimination laws.
What determines Pay Discrimination?
Pay discrimination is determined through several factors. It isn’t defined by what your job entails, or what your job title is. Instead, the law looks at the content of your job. Any employee claim has to prove that their ‘skill, effort and responsibility required in the performance of these jobs are substantially equal’ Arrington v. Cobb County, 139 F.3d 865, 876 (11th Cir. 1998).
Here, we will summarise these factors a little more clearly:
- Skill: measured by the amount of experience you have, and any relevant ability, education and training that you have that is required to perform your job. In a claim, keep in mind that the skills in question has to be relevant to the job. Skills you have as an individual doesn’t count.
- Effort: How much mental or physical effort do you need to perform your job?
- Responsibility: How much accountability is required of you in your job?
- Working conditions:
- Your direct physical surroundings, like the temperature, space, ventilation
- The hazards that you interact with in necessity with your job
- Establishment: Pay discrimination applies only to jobs within an establishment, which is a distinct, physical place where business occurs. This doesn’t mean an entire business or enterprise that make up several places of business.
What isn’t considered pay discrimination is when people are paid differently because of their seniority, merit, or the quantity or quality of their production. These are affirmative defences that an employer can show, and it’s their responsibility to prove that these apply when in doubt.
Relevant laws to pay discrimination
Some relevant laws in Australia are:
- Fair Work Act (2009) covers the following protective categories under it’s act: race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, or national extraction or social origin.
- Workplace Gender Equality Act (2012)
- Sex Discrimination Act (1994)
- Disability Discrimination Act (1992)
Who is covered by the law?
You might think that Fair Work Australia covers pay discrimination and while public opinion supports the abolition of the pay gap – this is somewhat impossible so long as the pathway to narrowing the gap remains unclear. If the pathway seems hard – the journey will be even harder. Then you have the debate loitering on performance and productivity. This type of discrimination can only be obliterated from the bottom up. Each business must start to introduce transparent wages and KPI’s clearly defining pay rates and bonuses. This will prevail in time – at least until legacies in the positions retire or move on. The Gap and its closure is riddled…
Remedies that can be recovered include:
In the very unlikely event that someone wishes to pursue a case in this matter, as a worker, you can be remunerated for:
- back pay and front pay,
- hiring, promotion and reinstatement,
- compensatory damages for matters such as emotional pain and suffering and punitive damages (damages to punish the employer)
- Payment of attorney’s fees, expert witness fees, court costs.
As an employer, you may be required to post notices to all employees addressing the violations of a specific charge and advise your workers of their right to be free of discrimination, harassment and retaliation. If necessary, such notices must be accessible to everyone that you’ve employed, including people with disabilities. In successful claims, you might also need to correct or prevent whatever source of discrimination that occurred, try to minimise it ever happening again, and stop any discriminatory practices that was involved in the case.
Retaliation is not allowed against a claimant
A worker would be protected against retaliation from any businesses, as it is against the law to retaliate against an individual who opposes employment practices that are discriminatory based on pay or compensation. This includes filing the charge, testifying, or any sort of participation in investigation, proceeding, or litigation under any relevant law of Act against discrimination.
The NSW Statute of Limitations for anti-discrimination is 12 months, and the Board can refuse to investigate any complaint that happened before that. However, this is not automatic, and if there is a delay, you can explain why when you lodge your complaint.
Australia (Federal): under the Australian Human Rights Commission Act (1986), there is no time limit for bringing a complaint to the AHRC, but the President of the AHRC may terminate a complaint on a number of grounds (if the complaint was lodged more than 12 months after discrimination took place). The only limitation to bringing a claim to court was that the application must be made within 28 days of the complaint being terminated by the AHRC. This technically implies, there is no time limit, even long after the records have been destroyed. A decision in Federal Magistrates’ Court of Australia.
Collappor8 can take care of your Human Resources Complaince, Employee Contracts – including special protective clauses and Awards), onboarding and manage any difficult aspects of employee engagement from time to time as you need it – either on a case by case basis, or on retainer. People and Culture can be affected by the existence or even the perceived existence of a pay gap. Even an accidental pay discrimination can place a cloud over a business, so the simple act of having it investigated could go a long way to reinspiring your staff and creating a balance of opinion about the business and its pay practices. Do you want to know how you fair? Do you need compliance advice? Are you already in a jam?