An equal pay lawsuit filed by a classical musician against the Boston Symphony Orchestra (BSO) was settled. The settlement leaves unanswered how a court will respond to “comparable work” arguments under the new Massachusetts Equal Pay Act (MEPA).
The lawsuit, filed by the orchestra’s principal flutist Elizabeth Rowe , was under close scrutiny as the first major case to be litigated in a court of law under MEPA.
While the details pertaining to the financial outcome of the settlement, reached last month, were not disclosed, Rowe’s lawyer and the Boston Symphony Orchestra released a joint statement to NPR stating that “all those involved in the process are satisfied with the result.” As part of the settlement, the orchestra “will continue to collaborate with musicians, staff, and other leaders in the field to accelerate the process of achieving gender parity.” Notably, Rowe continues in her role with the orchestra.
What was interesting about the Rowe lawsuit was that it was a first public glimpse into the type of legal strategy that may be deployed in pay discrimination cases litigated under MEPA. Rowe’s lawsuit laid out in great detail how and why Rowe and the orchestra’s principal oboist perform “comparable work” as that term is defined under MEPA. Rowe, the principal flutist, filed the lawsuit claiming she was paid only 75% of the principal oboist—a man she alleges performs “comparable work” under MEPA. One of the critical provisions of the new law is “a broader definition of ‘comparable work’ than the ‘equal work’ comparison required by the federal Equal Pay Act of 1963.”
A full list of the MEPA provisions can be viewed here.
In a guidance document on MEPA issued by the Massachusetts Attorney General, the concept of comparable work is described as follows:
“The law defines ‘comparable work’ as work that which requires substantially similar skill, effort, and responsibility, and is performed under similar working conditions.”
“MEPA permits differences in pay for comparable work only when based upon:
(i) a system that rewards seniority with the employer (provided, however, that time spent on leave due to a pregnancy-related condition and protected parental, family and medical leave, shall not reduce seniority);
(ii) a merit system;
(iii) a system which measures earnings by quantity or quality of production, sales, or revenue;
(iv) the geographic location in which a job is performed;
(v) education, training or experience to the extent such factors are reasonably related to the particular job in question; or
(vi) travel, if the travel is a regular and necessary condition of the particular job.”
“Importantly, MEPA makes clear that employees’ salary histories are not a defense to liability. Moreover, an intent to discriminate based on gender is not required to establish liability under the law.”
Of course, now that the lawsuit has been settled, court watchers will have to wait to see how effectively a “comparable work” strategy could have been litigated in court. That will be left to future cases.
In the meantime, equal pay lawsuits are continuing to surface across the U.S., in many different industries and sectors. And with more states and cities passing pay equity laws on equal pay, salary history bans, and banning consideration of past criminal records, organizations are at risk for potential financial penalties, expensive litigation and bad PR.
Best practices suggest taking a proactive approach to addressing the pay equity movement by proactively conducting a pay equity audit. This type of audit will identify any potential pay disparities that need to be addressed to be in compliance with federal and state regulations.
In some states, such as Massachusetts, a pay equity audit provides a defense for employers in case of litigation. According to the Massachusetts Office of Attorney General: “However, the law provides a complete defense for any employer that, within the previous three years and before an action is filed against it, has conducted a good faith, reasonable self-evaluation of its pay practices. To be eligible for this affirmative defense, the self-evaluation must be reasonable in detail and scope and the employer must also show reasonable progress towards eliminating any impermissible gender-based wage differentials that its self-evaluation reveals. Employers are not required to conduct self-evaluations and will not be penalized for choosing not to do so.”
It’s only a matter of time before your organization is asked about its pay equity practices. Better to get prepared now to address these issues than wait for a lawsuit to prompt a reaction.