Of lunch ladies and school janitors: a case study in (un)equal pay

Since one case went very badly for lunch ladies in Everett in the 1990s, advocates have been trying to tighten up the Massachusetts Equal Pay Act, M.G.L. c. 149, s 105A, a statute, among others, I used to be responsible for enforcing.

In the Everett case, female school cafeteria workers (a/k/a "lunch ladies") sued under the Equal Pay Act arguing that the male school janitors made more for comparable work. And even though it was shown that the male janitors made twice as much as the lunch ladies, in a series of court decisions, the lunch ladies got shot down. See, e.g., Jancey v. Sch. Comm. of Everett, 658 N.E.2d 162, 166 (1995); Jancey v. Sch. Comm. of Everett, 427 Mass. 603 (1998).

Why and what now?

To summarize many years' worth of court decisions, the highest court in Massachusetts concluded the work of the lunch ladies verses the janitors was not of "like or comparable character or work." As such, it was not comparable for purposes of the Equal Pay Act, and the lunch ladies' efforts seeking protections under that law to be paid equally to the janitors failed.

As of January 2016, the Massachusetts State Senate passed a bill to amend the Equal Pay Act, and the bill is now awaiting review by the state House of Representatives. Among its supporters are Attorney General Maura Healey and the Greater Boston Chamber of Commerce. What are some of its features?

1. It amends the definition of “comparable work” to mean work that is substantially similar in content and requiring substantially similar skill, effort and responsibility and performed under similar working conditions. This "substantially similar" standard is arguably broader than the Court's definition of comparable work in Jancey, and may allow for more comparisons to be made -- particularly in fields that have been historically male- or female-dominated such as cafeteria workers or janitors. In other words, if a different set of lunch ladies tried again under this new standard -- if it passes -- they may have a better shot.

2. It prohibits employers from requiring or requesting that an applicant disclose prior wages or salary history as a condition of being considered for a position. The purpose here is, first, an acknowledgement that wage and sex discrimination can happen and, second, its perpetuation must be stopped.

3. It prohibits employers from banning employees from discussing their salaries.

4. It creates an affirmative defense for any employer who, within the previous three years, completes a self-evaluation of its pay practices, in good faith, and can demonstrate reasonable progress has been made to eliminate gender based pay differentials for comparable work. In other words, if an employer finds itself the subject of an wage discrimination claim, if it had self-evaluated its own pay practices in good faith within the prior three years and made reasonable attempts to remedy any occurrences of unequal pay, it could use this as a basis for defending the claim.

If you are an employee with a sense that there is a pay gap between you and a similarly situated employee and believe discrimination may underlie that pay gap, contact me to discuss your options.

Alternatively, if you are an employer concerned about pay gaps in your workforce, contact me to discuss how a self-evaluation audit can be your best move in the long run.

If you are a lawyer and need a consult on an equal pay audit, or any other type of wage audit, contact me.

Please note: this blog post is accurate as of the date set out above. Any further legislative developments that happen thereafter may not be reflected.