Case Law in the USA, Canada and UK
This article encompasses case law and relevant in the USA, Canada and UK. All three countries have been placed under one heading, as all three countries are applying the principle of common law. Under the principle of common law, case law provides a major source of law. Individual cases have precedential effects on future cases. Furthermore, class action is possible within common law systems.
Class action cases are cases where the plaintiff is a group of people who are affected by the same type of damage. Class action cases are mostly a phenomenon under the common law system, thus, mainly present in the US, but also to much lesser extend in the UK and Canada.
Countries in Europe only have the possibility for class action for a marginal number of cases.
Already in 1963, the Equal Pay Act has been signed by President Kennedy. "The Equal Pay Act requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. It is job content, not job titles, that determines whether jobs are substantially equal." The evaluation of a job ist based on the following criteria: skill, effort, responsibility, working conditions and establishment. Furthermore, cases on equal pay may be filed under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Title I of the Americans with Disabilities Act of 1990. In discrimination cases, courts can decide that employers have to correct their wage structures and / or that employers have to compensate the plaintiffs.
In 2009, President Obama singed the Lilly Ledbetter Fair Pay Act. The Act was passed "in response to the 2007 Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007). Plaintiff Lilly Ledbetter worked for Goodyear at its Gadsden, Alabama, plant from 1979 until 1998. During much of this time, salaried employees at the plant were given or denied raises based on their supervisors' evaluations. By 1997, Ledbetter's male colleague's salaries were 15 to 40 percent more than what she received." Lilly Ledbetter eventually lost the case, as Supreme Court ruled that all claims were time-passed. The Lilly Ledbetter Fair Pay Act now allows to bring up cases on equal pay even after years and to bring all components of employment to the case, not only to discreet decision as before.
In addition to the national legislation, each state can issues laws on equal pay. A collection of equal pay legislations can be found via the AAUW.
Ellen Pao field a lawsuit against her employer Kleiner Perkins Caufield & Byers on gender discrimination and unequal compensation. The company is active in the field of venture capital in the Silicon Valley. The case has been widely discussed across the country, as the share of women in the Silicon Valley is very small and the share of women in the area of venture capital even smaller. Despite having lost the case, Pao has contributed to the discussion on women and gender equality in the Silicon Valley.
A class action case has been filed against KPMG "o remedy KPMG’s systemic discrimination in pay and promotion, discrimination based on pregnancy, and chronic failure to properly investigate and resolve complaints of discrimination and harassment." Approx. 1,300 women joined the class.
An recent class action case has been field against Merck. Here, 405 women field their complained against Merck, as Merck should have improperly paid their female Sales Representatives in contrast to their male Sales Representatives. The case is still open. Information can be obtained via the following link.
A class action case has also be filed against WalMart.The US Supreme Court rejected the case field by approx. 1.5 million women who brought forward that WalMart would discriminate women. The Supreme Court ruled that it can not be proven that every single member of such a large class has been discriminated to the same extend and on the same grounds. However, other cases on gender discrimination have been successfully field against WalMart.
In Canada, each state has its own legislation on pay equity and equal pay. Here, the case of Ontario is displayed as example. Quebec is currently reforming its equal pay legislation.
In Ontario, the Pay Equity Commission is responsible in enforcing the Pay Equity Act and ensuring pay equity within the state. In case of disputes on the matter, the Pay Equity Hearings Tribunal can solve the disputes. As a quasi-judicial body, the Tribunal has the "exclusive jurisdiction to determine all questions of fact or law that arise in any matter before it. The decisions of the Tribunal are final and conclusive for all purposes."
Class Action in Canada
In Canada, class action is in general possible, as the class action case of the Canada Post shows below. In addition, trade unions can file complains for the members both on individual and class action cases. This possibility has only used to a limited extend in past years, as many cases might touch collective agreements. In this case, trade unions would possibly file cases against their own negotiated agreements.
Case: Canada Post
2,300 employees of the Canada Post have filed a class action case against their employer already in 1985. The discrimination against female employees and in result lower wages have has been concluded and compensation has been issues by the court in 2011. The case has been widely discusses within the media, as the case has been fought for more than 30 years. The case has touched a complex matter, as the employees of the Canada Post are subject too national law, however, equal pay is a matter of state law in Canada. As a consequence of the case, the Canadian Post has to compensate about 30,000 employees with a volume of approx. $ 250 million.
The Equality Act of 2010 ist the central legal reference for claims on equal pay. The Act replaces previous anti-discrimination laws with a single Act. "It simplifies the law, removing inconsistencies and making it easier for people to understand and comply with it. The majority of the Act came into force on 1 October 2010. The Equality Act 2010 gives women (and men) a right to equal pay for equal work. It replaces previous legislation on equal pay, including the Equal Pay Act 1970, the Sex Discrimination Act 1975, and the equality provisions in the Pensions Act 1995."
Equal Pay Cases in the UK are normally heard by the Employment Tribunal. The Tribunal can declare the rights of the plaintiff, such as to order a pay rise, or can order the employer to pay damages to the plaintiff. Furthermore, under the Equality Act of 2010, The Tribunal can issue equal pay audits in case of detected unequal pay practices.
"The University Women of Europe (UWE) has filed collective complaints for application of the Social Charter in the 47 countries members of the Council of Europe. The University Women state that are not treated equal as they earn structurally less than men for equal work. As an international NGO, UWE is allowed to submit a collective complaint of violation of the European Social Charter."
See more information in the following Link.
- US Equal Employment Opportunity Commission: Facts About Equal Pay and Compensation Discrimination
- Developments in Equal Pay Law: The Lilly Ledbetter Act and Beyond, p. 7
- Sanford Heisler: Cases on Gender Discrimination
- Pay Equity Hearings Tribunal
- Equal Pay Portal UK