The Law @ Work

Will BSO Equal Pay Lawsuit Provide Clarification? Maybe Not.

by Amelia J. Holstrom

Back in 2016, Governor Charlie Baker signed an amendment to the state’s Equal Pay Act.  Under the new law, pay differences between persons of different genders performing comparable work are only acceptable if based upon: (1) a seniority system; (2) a merit system; (3) a system which measures earning by quantity or quality of production, sales, or revenue; (4) geographic location of the job; (5) education, training and experience, or; (6) the amount of travel required, if it is a regular and necessary condition of the particular job. The new law significantly expanded the definition of comparable work.  Specifically, “comparable work” is defined as work that requires “substantially similar skill, effort and responsibility” and is performed under “similar working conditions.”   In the guidance released by the Attorney General in March 2018, the state makes clear that “substantially similar” does not necessarily mean identical or alike in all respects.   The guidance also helps clarify other terms under the definition, including skill, effort, responsibility, and working conditions.  There is a silver lining for employers: The statute provides an affirmative defense to employers who complete a “good faith” self-evaluation of their pay practices and demonstrate “reasonable progress” toward eliminating any wage differentials. 

Despite the state’s effort to provide guidance on the new law, questions regarding its impact and how it will be applied and interpreted remain well after the July 1, 2018 effective date.  Unfortunately, without further guidance or formal regulations, employers won’t get clarification until the courts start issuing decisions in such cases. Employers, however, may be on their way to getting some, but not all, of the answers.

A mere one day after the new law went into effect, Boston Symphony Orchestra’s principal flutist, Elizabeth Rowe, filed a lawsuit in Superior Court against the Orchestra alleging that she was paid less per year than the principal male oboe player because of her gender.  The case, which got a lot of press, is believed to be the first one filed under the new law. 

After the case was filed, employers, and their employment lawyers, thought that they might finally get some answers, or at least clarification, regarding the ambiguities under the law.  Then, for months, there was silence.  That is until mid-December 2018 when the Washington Post published a detailed article about the case, which may leave employers’ dreams of getting some clarification from the courts dashed.  According to the article, Rowe and the Orchestra are mediating the case in an effort to resolve it without further litigation. 

So, what does this mean for employers?

If the case settles, employers will still only have the law itself and the Attorney General’s guidance on the new law, and employers will not receive any further clarification on questions such as what compromises comparable skill, effort, responsibility, and working conditions. 

Of course, if the Orchestra and Rowe can’t resolve their dispute, it still may be quite some time before employers get any answers.  After all, the discovery process, during which Rowe will seek to establish that her position as principal flutist is comparable to the position of principal oboe player, that she is paid less than the principal oboe player (she is, about $70,000 less), and that the Orchestra cannot justify the pay disparity based on any of the permissible reasons under the new law, can be lengthy.  After that process ends, it might take months to get a court or jury’s decision on the matter. And even then, the losing party may file an appeal, which can drag on for years.

Whatever the outcome, we’ll be keeping an eye on this case and keeping you informed of any developments as they arise.

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