As you undoubtedly know, the amendments to the Massachusetts Equal pay Act (“MEPA”), effective July 1, provide that “[n]o employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work
.” (Emphasis added). This memo is designed to provide insight into how our Massachusetts courts may interpret this new language beyond Attorney General Healey’s recent guidance.
Eleven other states also have a statute requiring employers to pay women the same wage as men for “comparable work.” Those states are Arkansas, Idaho, Kentucky, Maine, Maryland, North Dakota, Oklahoma, Oregon, South Dakota, Tennessee, and West Virginia. However, only Maryland, Massachusetts, and Oregon have reported cases discussing the comparable work standard contained in those states’ pay equity statutes.
In Maryland, the Court of Special Appeals recognized that the Maryland Equal Pay Act uses a “comparable work” standard that is different from the “equal work” standard set forth in the federal Equal Pay Act, but it did not elaborate on the distinction. Nixon v. State, 96 Md.App. 485 (1993). In Nixon, the court determined that a female assistant professor did not perform work of comparable character or comparable skill, effort, or responsibility as a male professor because the male professor was qualified to teach in two departments of the college, while the female professor was qualified to teach in only one. Also, the male professor was involved in coordinating research grants and authored or coauthored numerous academic publications, whereas the female professor had no involvement in either activity.
A recent arbitration case involving a female Chief Technology Officer (CTO) at a technology company provides another example of the application of Maryland’s “comparable work” standard. Ventura v. Bill Me Later, Inc., Am. Arbitration Ass’n, Case No. 16 166 00549 07. In that case, the claimant CTO earned substantially less than the men on the executive team. The company conceded that her performance was excellent, and that she led the largest department that was critical to the company’s business. The arbitrator ruled against her on the federal EPA claim, finding that the specific skills and responsibilities required for the different departments did not satisfy the substantially equal standard of the EPA. In contrast, the arbitrator ruled in her favor under the Maryland EPA’s “work of comparable character” standard. Even though the executives led different departments and may have had different specialized skills related to their departments, the arbitrator ruled their central executive and managerial functions constituted work of comparable character.
Oregon courts recognize that the state statute’s “comparable work” standard is “broader” than equal work. There, “‘[c]omparable’ does not require equality but that two [jobs] have important common characteristics.” Bureau of Labor & Industries v. Roseburg, 75 Ore. App. 306, n.2 (1985). In Oregon, like now in Massachusetts, only a comparison of jobs, and not of the employees’ qualifications, background, and experience, is relevant to the issue of whether employees are performing comparable work. The plaintiff in Roseburg was a transit coordinator who alleged that her job was comparable to those of three male public works department employees: the shop superintendent, the maintenance foreman, and the water foreman. The court affirmed a finding by the Oregon Commissioner of the Bureau of Labor and Industries that the plaintiff’s job was both “comparable” and “substantially similar” to the jobs performed by the three male supervisors. Specifically, the jobs:
“…involved skills which could be gained on-the-job, while working up through the ranks over time. They required technical skills which were substantial. They involved equivalent combinations of substantially similar supervisory, long-range planning, budget-preparing and other administrative skills, efforts and responsibilities. The working conditions for each position involved difficulty.”
Id. at 310. Given these similarities in tasks, the court found that the positions could be compared even though the supervisors’ work involved different types of activities.
Current Massachusetts law prohibits an employer from discriminating based on gender in the payment of wages for “comparable work.” In 1995, the Supreme Judicial Court in Jancey v. School Committee of Everett, 421 Mass. 482 (1995), enunciated a two-part test for determining the meaning of “comparable work” under MEPA. The first part of the test (which will become obsolete under the amended MEPA) requires a determination of whether the jobs have comparable substantive content, i.e., whether the two jobs at issue have key common characteristics. The second part of the test is whether the jobs involve comparable skill, effort, responsibility and working conditions. This second part of the test may well remain relevant, as it is parrots the statutory definition of “comparable work” in the new statute. It focuses on comparing employees’ duties and job functions. Gu v. Boston Police Dep’t, 312 F.3d 6, 16 (1st Cir. 2002).
Of course, Attorney General Healey’s recent guidance on the amended MEPA provides some clarification as to what constitutes “comparable work.” The guidance reiterates that “comparable work” requires “substantially similar skill, effort, and responsibility, and is performed under similar working conditions.” The AG’s guidance further explains that “substantially similar” means that the skillset, efforts and responsibilities are alike to a great or significant extent, but are not necessarily identical or alike in all respects. The AG takes the position that an employer may not determine comparability based on job titles alone. However, while an employer may not rely on job descriptions alone, she acknowledges that job descriptions that accurately reflect the skill, effort, and responsibility required to perform a job may be helpful in identifying which jobs are comparable. In rejecting the Jancey two-part test, the guidance also implies that two jobs do not have to be substantively similar in content in order to be comparable.
Moreover, the AG defines the key terms and provides examples of comparable / non-comparable jobs as follows:
- Skill - Skill includes such factors as the experience, training, education, and ability that are required to perform a job. As an example, the guidance explains that employees doing similar work on different lines of business for an employer may be similar, e.g., employees selling different types of insurance may be performing work requiring comparable skill unless one of the types of insurance requires meaningfully different levels or degrees of knowledge or expertise. Another example of jobs requiring comparable skill are janitorial and food service workers at an elementary school, as neither job requires previous experience in the field or specialized training.
- Effort - The AG explains that effort refers to the amount of physical or mental exertion (including mental fatigue and stress) needed to perform a job. As an example, the guidance states that a job that requires standing all day likely does not compare to a sedentary job. However, the average janitorial and food service job may require similar effort.
- Responsibility - Responsibility reflects the degree of discretion or accountability involved in performing the essential functions of a job, including whether an employee supervises others and similar factors. The guidance explains that an employee responsible for executing legal documents may have a different level of responsibility than an employee who drafts the documents.
- Similar working conditions - Working conditions include factors such as the physical surroundings and hazards encountered, including extreme temperatures, noise, fumes, heights and dangerous equipment. According to the AG, working conditions can take into account meaningful differences in the days or times shifts are scheduled. As examples, employees on factory floors may not perform work comparable to employees in offices, and jobs performed indoors might not be comparable to jobs performed outdoors. Furthermore, employees who package hazardous chemicals may not be comparable to employees who package non-hazardous materials.
Unfortunately, the Attorney General’s guidance defines each of these terms but does not address how employers should analyze them as a whole. In order to be comparable, jobs must be substantially similar in all of the respects she has addressed. Thus, the comparability test will fail if employees differ with respect to any one of those factors. The Maryland and Oregon rulings referenced above may give greater insight into these challenging issues.