Equal Pay Bill Becomes Law: Massachusetts Attempts to Close the Gender Pay Gap

Unequal pay between men and women is well-documented. From sports to the entertainment industry to medicine, the pay gap spans numerous professions. Studies also reveal that pay in traditionally male-dominated occupations can become depressed when women enter certain professions in large numbers. Overall, research by the American Association of University Women shows that women in the United States are paid about 20% less than their male counterparts. The wage disparity in Massachusetts is only slightly better with female employees receiving approximately 82% of the compensation of their male colleagues.

Massachusetts was the first state in the country to pass legislation, as codified under M.G.L. c. 149, §105A, mandating equal pay among men and women for “work of comparable character or work on comparable operations.” Since then, the Massachusetts Equal Pay Act (MEPA) has undergone several revisions and judicial interpretation. Prior to the most recent revision signed into law on August 1, 2016, and as testimony by Attorney General Maura Healey in support of its passage shows, MEPA has long been criticized as a statute without teeth.

Before diving into the significant changes under MEPA’s newest iteration, its legislative history is worth a look. In 1947, the Massachusetts Legislature amended MEPA to include several exceptions, allowing pay disparities between genders based on “seniority, experience, training, skill or ability, or difference in duties or services performed whether regularly or occasionally or difference in availability for other operations, or any other reasonable differentiation except difference in sex.” In that version, the broader “comparable work” standard was also replaced with a more restrictive standard, which required the work in question to be “substantially the same character” or on “substantially the same operations.”

In 1951, MEPA’s exceptions were largely dropped, permitting wage differentials based solely on seniority. The Legislature also broadened the work standard to include “work of like or comparable character or work on like or comparable operations.” For decades since, MEPA remained a relatively obscure law. Indeed, it was not until 1995 that the Massachusetts Supreme Judicial Court (SJC) in Jancey v. School Committee of Everett (Jancey I) had occasion to interpret our Equal Pay Act. In that case, approximately forty female cafeteria workers filed a class action complaint against the Everett public schools because they were paid less than male custodians. At trial, the judge found in favor of the plaintiffs and noted that “the work of cafeteria workers and custodians required substantially comparable skills, efforts, responsibilities, and working conditions.” In doing, the trial court awarded damages totaling more than $1 million.

Among its findings, the trial court concluded that the “over-all effort of the cafeteria workers, including physical and mental exertion, is comparable to the over-all effort of the custodians.” A recent article by Globe columnist Shirley Leung entitled A triumph long in coming in fair pay fight, provides additional context:

The women figured out that the school system’s male custodians were paid roughly twice as much. The lunch ladies argued that they did “comparable work” so they were entitled to the same size paycheck. During the trial, Jancsy testified that she cleaned and scrubbed, and even lifted heavy objects such as 10-pound logs of frozen hamburger and 40-pound cases of canned tomatoes.

On appeal, however, the SJC held that the trial judge applied the incorrect standard in determining whether the plaintiffs performed comparable work to male custodians. In doing so, the SJC interpreted the “comparable” work standard to require a two-party analysis — with step one asking “whether the substantive content of the jobs is comparable” and have “important common characteristics.” It is only where substantive content is comparable that the second step becomes necessary, which then asks “whether the two positions entail comparable skill, effort, responsibility, and working conditions.”

Through this paradigm, specifically step one, the SJC reasoned that cafeteria workers do not perform comparable work to custodians because the jobs lack common characteristics, regardless of whether the skill, effort, and responsibility are identical. In addition to interpreting the comparable work standard, the SJC also ruled that fringe benefits and other remuneration must be considered in deciding whether workers receive equal pay. Applying the SJC’s standard, the trial judge on remand concluded that “[t]he substantive content of the two jobs are so dissimilar that a reasonable person would regard them as categorically different or separate.” On this basis, the lower court reversed the verdict and entered judgment in the defendants’ favor. On appeal, in Jancey v. School Committee of Everett (Jancey II), the SJC in a close 4-3 decision affirmed the trial judge’s ruling.

The recent bill amending MEPA will become effective on January 1, 2018 and is viewed by employment attorneys as a legislative fix to the Jancey decisions. Specifically, “comparable work” is now defined to “solely mean work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions.” The statute also makes clear that “a job title or job description alone shall not determine comparability.” In addition, the statute makes it unlawful for employers to:

  1. Prohibit employees from discussing or disclosing their compensation with each other.
  2. Screen job applicants based on their compensation histories, or require prospective employees to disclose their prior salary or wages.
  3. Seek the salary history of prospective employees with the exception that a worker may provide written authorization to an employer to confirm prior wages, including benefits or other compensation, after an employment offer with compensation details has been made.
  4. Fire or in any other manner retaliate against an employee because she or he asserted rights guaranteed under this law.

As explained by Clare Foran in her article A Step Toward Equal Pay for Men and Women, these particular provisions help prevent pay disparity from perpetuating throughout a women’s career:

If a woman is paid less than a man for comparable work, and her salary is used by future employers as a baseline to determine what she will be paid in subsequent jobs, that financial shortfall may be more likely to persist over the course of her career.

Employers found to be in violation of MEPA must pay an employee’s unpaid wages, including any benefits and other forms of compensation, as well as an additional equal amount in liquidated damages. Employers must also pay the individual’s reasonable attorneys’ fees and costs.

Finally, the newest version of the Massachusetts Equal Pay Act carries a longer statute of limitations deadline and requires actions to be instituted within 3 years after the date of the alleged violation. In contrast, the prior version carried a one year statute of limitations deadline. Perhaps acknowledging the dangerous precedent set under Ledbetter v. Goodyear, which found an employee’s disparate pay claim under Title VII untimely because it was the result of discriminatory pay decisions that occurred outside the limitations period, the new bill is explicit that the filing deadline begins to run “each time wages, benefits or other compensation are paid” resulting from a discriminatory practice.

Once again, Massachusetts leads the way in attempting to close the gender pay gap. As the New York Times recognized, while similar fair pay laws across the country and on the federal level exist, this is the only statute that allows workers to freely discuss their wages among co-workers and that also prohibits employers from requesting pay information from prospective employees. These provisions alone will go a long way in promoting transparency and preventing past discriminatory pay practices from perpetuating. As before, however, the judiciary will likely play an important role in interpreting the Massachusetts Equal Pay Act, which could make or break its effectiveness.

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