News + Insights from the Legal Team at Zalkind Duncan & Bernstein

The Gender Wage Gap Persists, But There Are Legal Solutions to Pay Inequality

At this year’s Academy Awards, Patricia Arquette used the platform she gained as a Best Supporting Actress winner to speak about pay inequality, saying, “It is our time to have wage equality once and for all and equal rights for women in the United States of America.”  Persistent gender discrimination in employment is a barrier to that goal, but for women who experience pay discrimination at work, there are a variety of possible legal remedies.  This post explores some of the laws available to help address wage inequality under federal and Massachusetts law and outlines some of the ways that they do–and do not–protect female workers from unfair pay.

A federal law, the Equal Pay Act of 1963, 29 U.S.C. § 206(d), forbids employers from discriminating in the payment of wages on the basis of sex by paying employees of one sex less “for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”  Equal pay is required even for employees whose jobs are not identical, so long as they are substantially equal.  There are numerous exceptions to the equal pay requirement: an employer can justify unequal wages if it can demonstrate that the difference results from “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”

The numerous exceptions to the federal Equal Pay Act’s requirements, particularly including the catch-all exception allow employers to pay differential wages for essentially any reason at all that isn’t the employees’ gender, and the requirement that the jobs involved be “equal,” limit the number of cases in which successful claims may be brought.  (The Paycheck Fairness Act, which has been repeatedly introduced in Congress beginning in 2005 would, if passed, eliminate a major problem with the act by limiting the circumstances in which the catch-all exception could apply.)

For Massachusetts residents, there is another possibility: the Massachusetts Equal Pay Act (“MEPA”), M.G.L. c. 149, § 105A.  Like the federal Equal Pay Act, MEPA takes aim at gender inequality in pay.  Notably, though, it does not require that the jobs involved be “equal,” only that they have comparable substantive content and entail comparable skill, effort, responsibility, and working conditions.  The requirement of substantive content does not mean that the two jobs must be identical or fungible.  If two jobs meet those standards of similarity, they must receive equal pay unless the employer demonstrates that the difference is due to seniority.  In fact, under MEPA, a plaintiff alleging unequal pay need not demonstrate that the employer intended to discriminate on the basis of gender; it is enough to show that the two jobs are comparable and are not equally paid.

Finally, both Title VII and Massachusetts’ anti-discrimination law, Chapter 151B, prohibit gender discrimination in pay.  The relationship between Title VII and the federal Equal Pay Act is addressed in part through federal regulations, which make it clear that Title VII prohibits types of wage discrimination that are not actionable under the Pay Act.  There is very little appellate law dealing with pay claims under Chapter 151B, but it seems clear that Chapter 151B requires that Plaintiffs make a showing of intent that MEPA does not require.

Neither state nor federal law addresses circumstances in which employers pay unequal wages to employees holding jobs that are at a similar level in an organization, but that involve different substantive responsibilities.  In Jancey v. School Committee of Everett, 427 Mass. 603 (1998) (“Jancey II”), for example, the Massachusetts Supreme Judicial Court held that a public school was not liable under MEPA for paying its custodians, who were male, more than its cafeteria workers, who were female.  (Dissenting justices argued that that Court should have looked “beyond job labels and the different perceptions of cafeteria workers and custodians that are, in part at least, artifacts of sexual stereotyping and traditional job segregation by gender.”)  Analysis under the Federal Equal Pay Act would likely have ended with the same result.  The Fair Pay Act is another step that Congress could take to address these outcomes, and would require equal pay for employees in equivalent jobs even if their day to day work is dissimilar.

There is a lot of legislative activity happening now with the aim of ending the wage gap, including interesting proposed legislation in Massachusetts that tries to chip away at the gap by forbidding employers from asking job applicants about their current salaries (one way that inequality is perpetuated) and requiring them to disclose an advertised position’s minimum pay and allow employees to openly discuss their salaries.  As Ms. Arquette recognized, there is significant progress still to be made, but legislators, advocacy organizations, and individual employees continue to push for change.

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