Equal Pay for Equal Work, Full Disclosure

Women should not get paid less for the same work as men.  Fortunately in Massachusetts, they passed a law a long time ago outlawing unequal pay.

In Massachusetts, under the Massachusetts Equal Pay Act, it is against the law to pay people of different genders different wages for the same work.  There is only one exception.  The only exception is that you can legally pay people of different genders different wages if the other person has more seniority.  If an employer pays two people of different genders but similar seniority different salaries for the same work, the employer automatically loses.  A claim by the employer that there was no discriminatory intent to justify a difference in pay between two workers of different genders and similar seniority doing the same job, is not relevant to the above-mentioned exception.  So if an employer pays a woman less than a man for the same job with the same seniority, they cannot argue that the pay differential is for some reason other than discriminatory intent.  There is no “battle of the resumes” to justify different pay.  If a woman and a man do the same job, they must get paid the same, with the sole exception of a significant difference in seniority.

So the Massachusetts Equal Pay Act is a fairly strong law, and it is codified under Massachusetts Law Chapter 149, Section 105A.  It reads:

Section 105A. No employer shall discriminate in any way in the payment of wages as between the sexes, or pay any person in his employ salary or wage rates less than the rates paid to employees of the opposite sex for work of like or comparable character or work on like or comparable operations; provided, however, that variations in rates of pay shall not be prohibited when based upon a difference in seniority.

It is a good law, but there are two identifiable problems.

PROBLEM 1: MCAD will not hear Massachusetts Equal Pay Act cases.

First, Del Gallo has learned that the Massachusetts Commission Against Jurisdiction does not consider Massachusetts Equal Pay Act violations within their jurisdiction.  This needs to change so that the Massachusetts Commission Against Discrimination hears Massachusetts Equal Pay Act Claims just as it would entertain any traditional discrimination claim.  Del Gallo will fight for legislation so that the Massachusetts Commission Against Discrimination will entertain Massachusetts Equal Pay Act claims.  Women that are having problems with pay disparity who go to the Massachusetts Commission Against Discrimination should not have to rely on traditional discrimination statutes such as Mass. Gen. L. c. 151B which requiring a showing of discriminatory intent.  Traditional discrimination claims are harder and more costly to prove since the employer can claim the pay disparity is based on reasons other than gender.

SOURCE: MCAD & Kim Melanson, Complainants, v. .Electronic Security & Control Systems, Inc., Respondent, footnote 2, 2003 WL 22410652 (MCAD). (“The Massachusetts Equal Pay Act, M.G.L.c. 149, sec. 105A-C, was referenced in Respondent’s post-hearing brief. That statute is not enforced by the MCAD and thus is not addressed in this decision.”).

PROBLEM 2:  Women do not know they are not being paid the same.

The other problem is a simple one.  Women who are actually getting paid less for doing the same work often do not know they are being paid less for the same work because they do not know what their coworkers make.  We need to modify the Massachusetts Equal Pay Act so that there is a provision for pay transparency so that workers know what their coworkers are getting paid.  Armed with knowledge that they are not being paid the same, a women then could take corrective action.  Moreover, with pay transparency, an employer would be far less inclined to pay people of different genders differently in the first place, helping to eliminate the problem in the first place.

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