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Oversights in Equal Pay (Part One)

Published:  April 1, 2019

Often, the biggest problem with employment legislation is not the obligations it creates for employers, but rather, not clearly defining those obligations. Legislators can’t possibly envision all of the potential permutations and applications of the proposed law. This is an unfortunate reality. But usually the potential problem was overlooked because it is an unlikely or rare issue. The oversights generally only affect the few employers that are unlucky enough to face that novel complication. However, legislation can create major problems when the unforeseen situation has broader or widespread impact. Even employers that want to comply with all legal requirements of employment legislation sometimes find themselves in the unenviable position of not knowing how to do so. A few recent high profile lawsuits have demonstrated this fact.

As Massachusetts employers are no doubt aware, changes to Massachusetts equal pay law became effective July 1, 2018. Very few people dispute that the law has a valid purpose. It isn’t particularly controversial to suggest that employees should not be paid less based on their gender. But as mentioned above, the real problem is that the new law has overlooked one concern that may come up again and again. Over the first few months under the new law, we’ve already seen a few high profile cases that have highlighted areas that the new law overlooks.

In July 2018, just after the new version of the law went into effect, the lead flutist for the BSO sued over gender-based pay discrimination. In particular, the female flutist alleged that she was paid substantially less than the most comparable peer: the male lead oboist. The flutist also pointed to the fact that she had been featured as a soloist frequently during her tenure with the BSO, including more often than the oboist.

The BSO argued that the reason for the pay differential was not discriminatory. The BSO’s position was that a flutist and oboist were not comparable positions. The BSO argued that each instrument required unique skill and effort. Therefore, the BSO argued that the jobs weren’t comparable, as defined by the law, because they did not require substantially similar skill. However, under the law, it is not clear whether the “similar skill” means degree of skill or type of skill. For example, do welders and plumbers have similar skill?

The BSO also pointed to the fact that it is more difficult to find elite oboists because there are a much larger pool of flutists. This was a novel argument: can you justify a pay differential based on a scarcity of qualified applicants for a specific job, even when it is comparable, under the law, to another position, with a greater applicant pool? This has not been included as a permissible factor in justifying pay differential under the Mass. Equal Pay Act.

Fortunately for the parties involved, a settlement was reached at mediation. Unfortunately, for the rest of us, the settlement means we won’t get a resolution on the legality of market value as a permissible factor in considering compensation.

If you have any questions about MEPA, or any other aspect of employment law, please contact the attorneys at Royal, P.C.

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