Proposed New Equal Pay Legislation Makes Needed Updates to the Massachusetts Equal Pay Act

Massachusetts is one step closer to a strengthened equal pay law after the State Senate passed equal pay legislation in late January.  The bill, which now goes to the House of Representatives for review, seeks to address the continuing wage gap between men and women.  Although Massachusetts adopted its first-in-the-nation equal pay act in 1945, women in Massachusetts still earn approximately 80 percent of what men earn.  Women of color earn even less: African-American women earn 66 cents on the dollar, while Latina women earn 54 cents on the dollar compared to men.  An analysis by the Institute for Women’s Policy Research has concluded that Massachusetts will not close the pay gap until 2058.

The proposed new law seeks to accelerate the rate of change by making three key updates to the Massachusetts Equal Pay Act (“MEPA”).  First, the legislation broadens the definition of “comparable work” by explaining that “comparable work” is any work that is “substantially similar” in content and requires “substantially similar” skill, effort, and responsibility, performed under similar working conditions.  Moreover, employers cannot rely solely on job titles or descriptions to determine whether work is comparable.  If adopted, this new definition would overrule the narrower “comparable work” definition created by the Supreme Judicial Court in two decisions issued in the mid-nineties in the same case, Jancey v. School Committee of Everett.  Those decisions – the first to squarely interpret “comparable work” in the context of the state’s equal pay act – failed, as the dissenting justices noted in Jancey II, to look “beyond job labels” and perceptions of job differences “that are, in part at least, artifacts of sexual stereotyping and traditional job segregation by gender.”  By moving away from the Jancey definitions, the new legislation permits a broader analysis of whether work is truly comparable.

Second, the legislation forbids employers from asking job applicants about current salary or salary history.  This prevents employers from unintentionally perpetuating prior discrimination.  When, for example, an employer uses a job applicant’s current salary as a baseline for deciding what salary to offer in a new job, an employee who is underpaid in one job ends up being underpaid in a second (and third and fourth) job. In addition, an employer may use an applicant’s current salary to gauge that applicant’s value or her ability to perform at a high level.  If a job-seeker is underpaid in her current job, a potential employer may wrongly conclude that she is not functioning at the right level for the new job and may not offer her the new job.  The bill now pending in the state House of Representatives seeks to break the link between prior salary and future employment by preventing employers from asking for pay information until they have made formal offers of employment.

Third, the legislation promotes transparency by ensuring that employees are permitted to discuss their salaries with their colleagues.  While employees arguably already have this right under federal law, the proposed legislation certainly clarifies the right.

In an addition to strengthening equal pay protections, the proposed new law also encourages employers to evaluate their own pay practices, because even well-intentioned employers may not be aware of pay disparities within their own workforces.  Employers who complete self-evaluations of their pay practices and can show “that reasonable progress has been made towards eliminating compensation differentials based on gender” may raise their self-evaluations and “reasonable progress” as an “affirmative defense” to a pay claim.

There is proposed federal legislation that would make similar changes to the federal Equal Pay Act.  However, the Paycheck Fairness Act has been introduced in Congress repeatedly since 1997 and has never made it into law.  Massachusetts did not wait for federal action before passing an equal pay act back in 1945, and the state legislature should move forward now to strengthen equal pay protections.  Women in Massachusetts cannot wait until 2058 for equal pay.