Accustomed to Ears, All Eyes on Boston Symphony Orchestra in Equal Pay Lawsuit [UPDATED]

An equal pay lawsuit filed by a classical musician against the Boston Symphony Orchestra may provide an inkling into the legal strategy that may be used by employees under Massachusetts’ trailblazing equal pay law, “An Act to Establish Pay Equity.”

The new law, known as the Massachusetts Equal Pay Act, or MEPA, took effect on July 1, 2018. Among its provisions are:

1. a broader definition of “comparable work” than the “equal work” comparison required by the federal Equal Pay Act of 1963;
2. the increased burden on employers to account for wage disparities based on gender;
3. a prohibition on banning salary discussions amongst employees in the workplace;
4. a salary history ban similar to those passed in other states; and
5. damages of generally double the unpaid wages, as well as attorney fees and costs, for successful plaintiffs.

Barely 24 hours after the effective date, MEPA had its first lawsuit: a high-profile case involving world-renowned flutist Elizabeth Rowe and her employer, the Boston Symphony Orchestra. As reported by many news outlets, such as the New York Times, Rowe, the principal flutist, filed suit claiming she is paid only 75% of the principal oboist—a man she alleges performs “comparable work” under MEPA. In an fascinating blog post, the website Adaptistration did a deep dive into Rowe’s legal complaint, including taking her allegations line by line. What emerges from this post is a portrait of the first legal strategy put forward under MEPA, which includes laying out in great detail how and why Rowe and the principal oboist perform “comparable work” as that term is defined under MEPA.

As described in a guidance document on MEPA issued by the Massachusetts Attorney General earlier this year, “[d]etermining whether jobs are comparable will require an analysis of the jobs as a whole.” In allegations such as the following, Rowe and her legal team present the Court with a comprehensive depiction of the similarities between principal flutist and principal oboist:

24. The collaboration between the principal oboist and the principal flutist is a pivotal relationship and a cornerstone of the orchestra. Of all the principal chairs, the flutist and oboist are the most comparable based on number and type of contributions in the pieces played, the prominence of their contributions, and the similar needs of their respective wind sections.

46. Ms. Rowe and Mr. Ferrillo, principal wind players in endowed chairs at the BSO, are among the top performers in the world in their respective instruments and have substantially similar skill, effort and responsibility in their positions except that Ms. Rowe performs more frequently as a soloist.

While allegations in a legal complaint are not to be taken as fact, the pleadings “set the stage” (pun intended) for legal wrangling over the issue of whether Rowe and the principal oboist perform “comparable work.” Confirming this will be a central issue, the Boston Globe reported last month that the Boston Symphony Orchestra denied in a court filing that the work is comparable, arguing: “the flute and the oboe are not comparable instruments, nor are they treated as such by most major orchestras in the United States.”

Accustomed to ears, all eyes are now on the Boston Symphony Orchestra to observe how this suit will proceed.

To learn more about achieving pay equity, click here.