It is largely accepted, in principle, that employers should be required to pay employees the same wage for performing the same work. In reality, however, women often earn less than men, though the reasons for that gender pay gap are not necessarily a case of employers simply saying, “you’re a woman, I can pay you less.”
The Ontario Equal Pay Coalition’s most recent calculation indicates that the province’s gender pay gap is approximately 30 per cent when considering average annual earnings across all industries. This figure has only decreased by six per cent since the late 1980s. In Manitoba, statistics show that female workers aged 24 to 54 earned 90.24 per cent of male workers’ average hourly salary in 2016. The 2016 information on the median total income for women in Manitoba was 32 per cent lower than for men.
While it’s true that this disparity may be explained in part by differences in job type and seniority, the gap also exists in law, where the only difference is gender.
In July of 2016 three Ontario legal aid lawyers filed a complaint to Ontario’s Pay Equity Commission demanding that Legal Aid Ontario conduct a gender-neutral job evaluation to ensure that female lawyers’ pay was in line with that of male lawyers doing similar work.
Under the province’s Pay Equity Act, the legal aid staff lawyer positions are statutorily deemed to be in a “female job class,” as over 60 per cent of the members are women. Notably, Ontario Legal Aid is also considered to be one of the most racially diverse groups of public sector lawyers in the province. The complaint cites the average income of other (more male-dominated) government lawyer positions, which are significantly higher than those of Legal Aid staff.
And how does translate to private practice? That’s harder to quantify, because most Canadian law firms do not report their income.
In private practice, compensation is supposed to be calculated directly as a percentage of productivity and collections. The go-to response for why women would earn less in this nominally gender-neutral system tends to be that because women take time out to have children, and once they have children, have more childcare demands – they are simply less productive.
But in fact the rationalizations for paying women less than their male counterparts are myriad, and add up to what can be described as an opportunity gap as much as a wage gap. For example:
- Women may have fewer opportunities to work on higher-paying files. Senior male lawyers might prefer to work with a same-sex associate because of their shared interests – golfing and hockey, for instance. A mother of young children might be overlooked because she’s seen as less committed to her career than a father of young children. Women might not be included in lunches or activities with clients where “locker room talk” might offend their delicate feminine sensibilities.
- Women may be less likely to turn away or refuse to work on less desirable matters where there are expected to be more courtesy discounts to a client or reductions in billings.
- Women may be more likely to practise in areas of the law that provide lower collections than male-dominated areas.
- There may be greater expectations that the women lawyers will be the “team player” contributing more non-billable work regardless of the hours put in.
Men and women leave law school in roughly equal numbers, and start out with similar compensation, but women drop out of the rat race at a disproportionately higher rate, meaning relatively few women make it to senior partner positions. All of the above likely contribute in some degree to this disparity.
In 2018, the Women’s Lawyer Forum will endeavor to tackle the issue of pay inequalities in the legal profession. For that we need data, so our first step will be a compensation survey aimed at demonstrating whether a pay equity issue exists for partners in law firms of 50 or more lawyers, and if so, why. We hope that with a deeper understanding of what causes a gender pay gap we will gain insight into what can be done to eradicate the disparity.
This isn’t just a “women’s problem.” Gender pay gaps go to the larger issues of equity for everyone in the country. In the larger workforce, systemically lower salaries lead to a “feminization” of poverty. We don’t suggest that the majority of female lawyers experience poverty, but we do believe they have a social responsibility to speak out against pay inequity. If women in the legal profession cannot achieve equal pay to men, women at the poverty level don’t stand a chance.
Tanya Keller and Megan Spencer are associates with Sternat Manaigre Law Corporation in Winnipeg.