Switching It Up: Massachusetts Enacts Bold New Equal Pay Law

Posted in: Civil Rights

The gender wage gap is persistent, entrenched, and bemoaned. What would it take for it to be narrowed instead? There is no easy answer to that question, but part of the answer lies in trying to remove some of the known obstacles to pay equity. Massachusetts has done just that, with a law that tackles the “prior salary” problem—the ostensible need of employers to match an applicant’s prior salary, which just compounds all previous pay inequities.

The Problem of Pay Inequality

Women earn less than men in the United States, even when doing the same job in the same conditions. This fact—captured by the phrase the “gender wage gap”—defines perhaps the most significant aspect of women’s working lives in this country. It also drives things like the number of families living in poverty (a significant proportion of which are in female-headed households with children).

On average, a woman earns less than 80 cents for every dollar a man earns. Equal Pay Day, celebrated in April, represents how long a woman has to work into a subsequent year to accumulate the pay her male counterparts had by New Year’s Eve. Almost no one denies the existence of the gap, nor the fact that some of it is the result of pay discrimination.

The gender wage gap is largest for African American and Latina women, and it exists at every level of earnings. Female surgeons earn less than male surgeons, as do female accountants, lawyers, teachers, and clerical workers. This pay gap grows over a woman’s lifecycle, with women’s earning only 38 percent of their male counterparts over 15 prime earnings years, according to one study. And one important, though underplayed aspect of the wage gap is that women suffer its effects throughout retirement because virtually every pension system is based on salary in some way. This was one of the facts that motivated Lilly Ledbetter to challenge pay discrimination she suffered while working in a tire manufacturing plant for Goodyear Tire & Rubber. Her pay discrimination, which she more than adequately proved to a jury before having her case thrown out on procedural grounds, was a gift that will keep on paying as she collects a smaller retirement benefit each and every month.

Using the Law to Narrow the Gap

One might have expected the gender wage gap to have disappeared as women increased their labor force commitment over the last several decades, but the numbers prove otherwise. (A chart compiled by the National Committee for Pay Equity documents the slow progress in eliminating the wage gap.)

The centerpiece of pay equity law is the federal Equal Pay Act (EPA), enacted in 1963, one year before Congress adopted the broader and more sweeping ban on employment discrimination—Title VII. The EPA guarantees equal pay for equal work for men and women who do the same job for the same employer (while Title VII prohibits employers from taking sex into account when making or implementing any pay decision, regardless of whether a comparable worker was treated better).

Both laws are important, albeit limited, but neither has bridged the pay gap, which has barely moved since the 1980s. Part of the problem is an affirmative defense in the Equal Pay Act (one also added to Title VII for pay claims) that protects decisions based on any “factor other than sex.” This has traditionally been read broadly by courts to permit employers to explain disparities by reference to prior salary, market conditions, negotiation by the employee, and a variety of other justifications that serve to perpetuate prior pay discrimination and, in some cases, exacerbate it.

Efforts to amend the EPA have languished in Congress. A leading proposed bill, the Paycheck Fairness Act, would tackle many current obstacles to pay equity. But it does not show any signs of passing. State legislatures, however, have begun to tackle pay equity problems more proactively.

In 2016, California passed the Fair Pay Act, which fills some of the gaps in federal pay equity law. The legislature made findings that the wage gap is wide, especially for women of color, and significantly affects women’s economic security, especially for single mothers. It further identified occupational segregation—the reality that there are “women’s jobs” and “men’s jobs”—as a significant driving force in the pay gap. A tool developed by economists, the Index of Occupational Dissimilarity, measures the degree of occupational segregation by the percentage of male or female workers who would have to change jobs in order for each occupation to have gender representation that reflected the workforce as a whole. A value of one indicates a completely segregated workforce; a value of zero indicates a completely integrated one. Although the score on this index has declined (indicating greater gender integration), the score was .50 in 2011, which means that fully half of women or men would have to change occupations to achieve completely integration. (A detailed and scholarly treatment of the occupational segregation problem, published by the Institute for Women’s Policy Research, is available here.) And the reality is that women’s jobs pay less.

The California legislature also zoomed in on pay secrecy as an enabling factor in the wage gap. Pay decisions are usually made in secret. And even though it is illegal under several state laws and under the federal National Labor Relations Act, a shocking number of employers explicitly prohibit employees from discussing their pay with co-workers. Yet pay information is essential for an employee to learn whether she has been paid fairly. Under the federal Equal Pay Act, her legal claim depends on her ability to identify an actual comparator—a man doing her job for the same employer in the same location for more money. If pay is kept secret, how would she ever know there was a disparity?

Moreover, pay discrimination is hard to discover because pay is an inherently favorable employment action. Being offered a job with a particular salary is a good thing, as is getting a raise or a bonus. But a good thing can become a bad thing if one learns at the same time that a new male hire was offered more to do the same work, or that male co-workers received significantly bigger raises without justification for the difference.

The California law expands on federal pay law by narrowing the affirmative defenses an employer can offer to explain a pay disparity, loosening the search for a comparator, increasing the damages available for a proven violation of the state’s equal pay law, and providing that an employer cannot prohibit employees from discussing or inquiring about wages.

New York passed some of the same protections as part of Governor Andrew Cuomo’s Women’s Equality Agenda, which included several measures to protect women against discrimination (the law and its history is discussed in more detail here and here). Like California, New York tackled some of the thorniest pay equity problems head on. In broad brush, it made it more difficult for employers to explain away pay disparities and tried to promote pay transparency.

The New Law in Massachusetts

Massachusetts not only followed in the footsteps of these two strong examples, but also took some new steps in the fight against pay inequity.

First, the Massachusetts law does not include a “factor other than sex” defense. Rather, it defines the specific factors that can be taken into account. And, for those, such as education, training, and experience, the employer bears the burden of showing that “such factors are reasonably related to the particular job in question and consistent with business necessity.” This is a feature of the California and New York laws, as well as the proposed but as-of-yet-unpassed, federal Paycheck Fairness Act. This is important because no two employees will bring identical resumes to the table. If an employer can defend against an equal pay claim by rummaging through the files and coming up with some ostensibly relevant difference, the law is providing very little protection. In the approach taken by these states, the employer cannot just point to any difference and claim it was dispositive; it must show that the particular difference was a relevant and necessary consideration for the particular job.

Second, the new law broadens the definition of equal work—replacing the term, first of all, with “comparable work,” which is defined as “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions; provided, however, that a job title or job description alone shall not determine comparability.” This may not seem like a significant improvement over the Equal Pay Act’s search for a substantially similar job, but this is a looser term and definition, perhaps inviting claims of comparable worth, in which a “woman’s job” could be compared to a “man’s job” if they required equal skill and effort.

Third, Massachusetts has expanded the remedies available to pay discrimination victims. In addition to unpaid wages, a winning plaintiff is entitled to “liquidated damages” in the same amount—a penalty for the employer, and additional compensation for the employee. The employee is also entitled to attorney’s fees, which is important in enticing attorneys to represent employees in discrimination claims, which have a very low success rate.

Fourth, the law provides an incentive to employers to audit their own pay practices to look for (and presumably correct) pay disparities. Employers who conduct such self-evaluations can minimize their liability in equal pay lawsuits. This is important, as companies who voluntarily do such audits typically find significant disparities. If such audits were more commonplace, the wage gap might narrow from that alone.

Finally, and importantly, the new law does not allow an employer to ask an applicant about salary history (or seek the information directly from a prior employer) until after “any offer of employment with compensation has been made to the prospective employee.” In other words, Massachusetts deals with the prior-salary problem by eliminating it. But this provision also does something more subtle, with a potentially more significant impact. It shifts focus from the employee to the job—and forces the employer to think about how much the work is worth. This eliminates many of the factors that seem to perpetuate the wage gap, such as how well an applicant negotiates a starting salary or how the employer might assess an applicant’s worth based on stereotyped views of women.


The new law in Massachusetts is part and parcel of a welcome trend—states’ stepping up to protect employees in ways that Congress cannot seem to do. Massachusetts builds on the approach endorsed in California and New York and opens a new discussion about the irrelevance of prior salary and the relevance of employers’ taking some responsibility for their own pay structures. This is a strong step in the right direction.

Posted in: Civil Rights, Employment Law

Tags: Legal

  • Re: “Women earn less than men in the United States, even when doing the same job in the same conditions.”

    Apparently you favor generalizations. Do you favor “Men are smarter than women”? “Women are better nurturers”?

    You make it seem as if every women earns less than every man in every job they share. Then answer this:

    Most feminist activists and other women’s advocates seem to believe employers are fiercely determined to pay women less than men for the same work.

    Yet they also seem to think employers’ prime modus operandi is greed. (“Corporate greed” is perhaps one of their most salient rallying calls.) Thus they no doubt believe employers would hire only illegal immigrants for their lower labor cost if they could get away with it (many do get away with it), or would move their business to a cheap-labor country to save money, or would replace old workers with young ones for the same reason.

    So why do these same feminist activists and women’s advocates think employers would NOT hire only women if, as they say, employers DO get away with paying females at a lower rate than males for the same work?

    Many of America’s most sophisticated women choose to earn less than their male counterparts:

    “Female physicians worked about 5 hours fewer per week than their male counterparts through age 54….” https://www.aamc.org/download/426242/data/ihsreportdownload.pdf?cm_mmc=AAMC-_-ScientificAffairs-_-PDF-_-ihsreport

    “In 2011, 22% of male physicians and 44% of female physicians worked less than full time, up from 7% of men and 29% of women from Cejka’s 2005 survey.” ama-assn.org/amednews/2012/03/26/bil10326.htm

    “…[O]nly 35 percent of women who have earned MBAs after getting a bachelor’s degree from a top school are working full time.” It “is not surprising that women are not showing up more often in corporations’ top ranks.” http://malemattersusa.wordpress.com/2014/04/25/why-women-are-leaving-the-workforce-in-record-numbers/

    “Compared to men, women view professional advancement as equally attainable, but less desirable” http://www.pnas.org/content/early/2015/09/15/1502567112.full.pdf

    Despite the 40-year-old demand for women’s equal pay, millions of wives still choose to have no pay at all. In fact, according to Dr. Scott Haltzman, author of “The Secrets of Happily Married Women,” stay-at-home wives, including the childless who represent an estimated 10 percent, constitute a growing niche. “In the past few years,” he says in a CNN report at tinyurl.com/6reowj, “many women who are well educated and trained for career tracks have decided instead to stay at home.” (See also “More Women are Quitting the Workforce,” Oct. 3, ’14, http://www.marketwatch.com/story/more-women-are-quitting-the-workforce-2014-10-03 The labor force participation rate of women aged 16 or over has been declining since April 2000. Perhaps one unrecognized reason is that feminists and the liberal media have told women for years that female workers are paid less than men in the same jobs — so why bother working if they’re going to be penalized and humiliated for being a woman, as illustrated by such titles as this: “Gender wage gap sees women spend 7 weeks working for nothing” http://www.irishexaminer.com/ireland/cwgbaueysnsn/rss2/.)

    Numbering in the millions, stay-at-home wives, whether mothers or childless homemakers, earn zero wages. How can so many women afford to do this while in many cases living in luxury? Answer: Because they’re supported by their husband, an “employer” who pays them to stay at home. (Even today, far more wives are supported by a spouse than are husbands.)

    The implication of this is probably obvious to most 12-year-olds but seems incomprehensible to, or is wrongly dismissed as irrelevant by, feminists and the liberal media: If millions of wives are able to accept NO wages, millions of other wives, whose husbands’ incomes vary, are more often able than husbands to:

    -accept low wages
    -refuse overtime and promotions
    -choose jobs based on interest first, wages second — the reverse of what men tend to do (The leading job for American women as of 2010 is — has been for over 40 years — secretary or administrative assistant. http://www.huffingtonpost.com/2013/06/11/gender-wage-gap_n_3424084.html)
    -take more unpaid days off
    -avoid uncomfortable wage-bargaining (tinyurl.com/3a5nlay)
    -work fewer hours on average than men (http://www.bls.gov/news.release/atus.nr0.htm), or work less than full-time more often than their male counterparts (as in the above example regarding physicians)
    -fewer women than men have interest in being the boss http://www.pewsocialtrends.org/2013/12/11/on-pay-gap-millennial-women-near-parity-for-now/

    Any one of these job choices lowers women’s median pay relative to men’s. And when a wife makes one of the choices, her husband often must take up the slack, thereby increasing HIS pay — as he decreases his freedom.

    Women who make these choices are generally able to do so because they are supported — or, if unmarried, anticipate being supported — by a husband who feels pressured to earn more than if he’d chosen never to marry. (Married men earn more than single men, but even many men who shun marriage, unlike their female counterparts, feel their self worth is tied to their net worth.) This is how MEN help create the wage gap: as a group they tend more than women to pass up jobs that interest them for ones that pay well.

    From: “Salary Secrecy — Discrimination Against Women?” http://malemattersusa.wordpress.com/2014/10/27/salary-secrecy-discrimination-against-women/