Yesterday Massachusetts Gov. Charlie Baker (R) signed into law amendments to the Massachusetts Equal Pay Act, M.G.L. c. 149, s. 105A, which were passed by unanimous votes in the state House and Senate. Although Massachusetts has long required employers to pay men and women equally for “work of comparable character or work of like or comparable operations,” the new amendments are expected to make assertion of pay equity claims easier.

The amendments, which will take effect January 1, 2018, use language similar to that found in other state “comparable worth” laws, such as the one recently enacted in California, and include the following key provisions:

• Employers will not be allowed to screen applicants based on their wage history. They will not be allowed to ask applicants about their salary history until after an offer of employment has been made.
• Employers will not be able to prohibit employees from discussing or comparing salaries. Although the National Labor Relations Act already prohibits such conduct, this amendment creates a private right of action under state law for employees to enforce this right.
• Employees or prospective employees who believe they have faced discrimination under this law will be able to sue directly in court and will no longer have to first file a charge with the Massachusetts Commission Against Discrimination.
• Employees will have three years (currently, one) to institute an action arising out of an alleged violation of the law.
• The definition of “comparable work” will now read as follows: “work that is substantially similar in that it requires substantially similar skill, effort and responsibility and is performed under similar working conditions . . ..” (Emphasis added.) The practical implications of this change are discussed below.
• Employers who conduct internal audits of their wage practices may be able to assert an affirmative defense under the new law when faced with claims of gender-based wage disparities. This audit must have been conducted in “good faith,” and the employer must be able to demonstrate that it has made “reasonable progress towards eliminating compensation differentials based on gender for comparable work.” Such self-audits must have begun before the legal action was instituted and must have been completed during the three-year period immediately before.
• Although this new law, unlike the Massachusetts Wage Act, does not currently impose treble damages for disparate pay violations, it is possible that the Massachusetts Legislature will look to enact treble damages at some point in the future.

The new law explicitly provides that pay differentials based on the following are permissible:

• Seniority, except that women who take time off due to a pregnancy-related conditions and protected parental, family, and medical leave cannot face seniority reductions.
• Merit.
• Quality or quantity of production.
• Geographic location.
• Education, training, and experience, to the extent “reasonably related” to a specific job.
• Travel, if a regular and necessary job condition.

What is “comparable work”?

A key question under this new law is how, in practice, the new definition of “comparable work” will change the way Massachusetts courts analyze gender-based salary claims. The word “comparable” is not new; the prior version of the MEPA prohibited pay differences based on gender for “work of comparable character or work of like or comparable operations.” However, the state Supreme Court’s interpretation of what a “comparable job” meant was quite narrow, and this new law may broaden that interpretation.

In its 1995 decision in Jancey v. School Committee of Everett (Jancey I), a case involving female cafeteria workers who claimed pay discrimination in comparison with male custodians, the Supreme Judicial Court defined the word “comparable” narrowly. Finding that the term “comparable” could not be applied to substantively different jobs, the Court adopted a two-part analysis for equal pay claims: first, a court must first find that the two jobs have comparable substantive content, meaning “important common characteristics.” If they do, the court goes on to determine whether two positions entail “comparable skill, effort, responsibility, and working conditions.”

After determining the standard that should apply, the Supreme Judicial Court then remanded the case, and the lower court applied the two-part analysis in determining that the female cafeteria workers were not discriminated against. The plaintiffs appealed again, and the Supreme Judicial Court affirmed in 1998 (Jancey II).

The dissent in Jancey II, written by Justice Margaret Marshall, said that a case-by-case analysis was more appropriate, particularly with jobs—like cafeteria workers and custodians—that have been “traditionally segregated by gender.”

The new amendments to the MEPA may mean that Justice Marshall has carried the day. It appears that the amendments will result in the elimination of step one of the Jancey analysis (whether the jobs share “important common characteristics”) and will instead go directly to step two (whether the jobs entail “substantially similar skill, effort, responsibility, and working conditions”).